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Full text of "The law of motion pictures, including the law of the theatre treating of the various rights of the author, actor, professional scenario writer, director, producer, distributor, exhibitor and the public, with chapters on unfair competition, and copyright protection in the United States, Great Britain and her colonial possessions"

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OCT  20  Ij22  ^^^  ^^ 












0.6 ^Y  Z 

Copyright,  1917,  bt 










So  rapid  has  been  the  growth  of  the  motion  picture  in- 
dustry that  within  a  (juarter  of  a  century  after  its  birtli, 
it  ha.s  taken  its  place  among  the  five  foremost  business 
enterprises  of  this  country. 

Litigation  between  the  different  parties  associated  with 
the  business  has  been  frequent  and  has  resulted  in  a  large 
body  of  case  law  on  the  questions  peculiar  to  the  industry. 

Notwithstanding  the  growth  of  this  branch  of  the 
amusement  life  of  the  nation  and  of  the  importance  of  the 
law  peculiar  to  it,  no  attempt  has  been  made,  so  far  as  we 
know,  to  collect  the  decisions  and  to  point  out  the  general 
principles  of  law  which  have  been  developed  by  the  courts 
with  reference  thereto. 

To  give  such  a  statement  of  the  motion  picture  law  has 
'been  our  object. 

We  have  collected  every  available  decision  of  the  State 
and  Federal  Courts,  as  well  as  of  the  Courts  of  England 
and  Canada  relating  to  motion  pictures.  We  have  also 
collected  all  the  more  important  decisions  with  reference 
to  tiie  theatre  and  literary  property  in  general,  as  many  of 
the  principles  estal)lished  in  those  branches  of  the  law 
apply  to  motion  pictures. 



If  this  work  will  assist  the  Bench  and  the  Bar  in  clarify- 
ing the  numerous  legal  questions  constantly  presented  in 
Utigation  of  this  nature,  we  shall  feel  amply  repaid  for  our 

Thanks  are  due  to  William  Leonard  Berk,  Esq.,  for 
assistance  on  the  proofs. 

Louis  D.  Frohlich, 
Charles  Schwartz. 
165  Broadway,  New  York. 
December  1,  1917. 



Rights  in  his  Literary  Works 

Sec.     1.  Where  the   motion  picture  is  based  upon  a  dramatic 

composition 1 

2.  Where  the  motion  picture  is  based  upon  a  novel  or  his- 

torical work 11 

3.  Where  the  motion  picture  is  based  upon  a  short  story, 

sketch,  poem,  lecture,  sermon  or  other  kindred  work .  .      15 

4.  Where  the  motion  picture  is  based  upon  an  original 

scenario,  tliat  is  one  not  based  upon  any  other  work.  .      V.) 

5.  Where  the  motion  picture  is  l)ased  upon  a  news  item .  .  .     23 

6.  Where  the  motion  picture  is  based  upon  a  work  in  the 

public  domain 24 

7.  Where  the  motion  picture  is  produced  in  serial  fonn..  .  .     25 

8.  Where   the  relationship   is  that  of  employer  and   om- 

I)loyc 2() 

9.  Where  the  motion  picture  material  has  been  written  by 

more  than  one  person 35 

10.  Nature  of  the  contract  of  co-authorship 45 

11.  Whore  music  has  been  written  specially  to  accompany 

the  exhibition  of  the  motion  picture 51 

12.  Where  the  motion  picture  producer  has  not  followed  the 

text  of  the  work  upon  which  the  motion  picture  is 
based 53 

13.  Criticism  of  the  work 63 





Miscellaneous  Questions 

Sec.  14.  On  the  question  whether  the  contract  existing  between 

the  parties  is  a  personal  one 67 

15.  Where  the  contract  contains  a  negative  covenant 71 

16.  Where  the  work  is  to  be  to  the  satisfaction  of  the  pro- 

ducer       73 

17.  Where  the  contract  provides  for  the  writing  of  a  Hbelous, 

immoral  or  seditious  work 73 

18.  Where  the  Hcense  granted  is  a  sole  and  exclusive  one. ...     73 

19.  Where  the  contract  contains  limitations  as  to  methods  of 

exploitation 74 

20.  Where  the  work  is  to  be  produced  at  a  definite  time. ...     75 

21.  Where  the  payment  to  the  author  is  based  upon  a  per- 

centage of  the  gross  receipts  or  net  profits 77 

22.  Where  the  amount  to  be  paid  to  the  author  is  guaranteed    79 

23.  Wliere  the  payment  to  the  author  is  a  stipulated  amount 

per  performance  or  per  period 80 

24.  Where  the  amount  of  damages  in  the  event  of  a  breach  is 

stipulated 83 

25.  Wliere  the  contract  provides  for  a  forfeiture  upon  failure 

to  pay  the  royalties  due 84 

26.  Where  the  manuscript  is  lost  or  converted  after  submis- 

sion to  the  producer 87 

27.  Where  the  work  is  secured  by  means  of  a  prize  contest. .     88 

28.  On  the  (juestion  whether  an  outright  purchaser  is  re- 

quired to  reproduce  the  work 89 

29.  On  the  question  whether  the  producer  is  entitled  to  a  re- 

fund of  advance  payment 90 

30.  On  the  question  whether  the  contract  may  be  rescinded 

vfho.rv  tlic  author  made  a  poor  bargain  or  where  fraud 

is  involved DO 


Sec.  31.  On  the  question  whether  the  contract  may  be  rescinded 
wliere  tlie   producer  made   ii  poor  bargain   or   where 

frtiiui  is  involved 'Jl 

32.  On  the  question  whether  a  contract  to  write  will  be 

specifically  enforced 92 

lili.  On  tlio  question  whether  the  licensor  may  maintain  an 

action  against  third  parties 92 

34.  On  the  question  whether  courts  grant  injunctions  pen- 
dente lite  more  readily  in  actions  of  this  nature 92 



The  Actor 

Sec.  35.  In  general 95 

36.  Injunction   for   breach  of-  contract  where  services  are 

special,  unique  and  extraordinary 95 

37.  Injunctions  pendente  Hte 108 

38.  Services  to  be  ".satisfactory" 112 

39.  Length  of  engagement 117 

40.  Two  weeks'  custom  and  other  customs 119 

41.  Contracts  for  work  on  Sunday 125 

42.  Services  "actually  performed" • 131 

43.  Substantial  performance 133 

44.  Anticipatory  breach 135 

45.  E.xposure  to  obscenity,  ridicule,  degradation,  etc 136 

46.  Renewal  of  contract — modification 142 

47.  How  many  causes  of  action  for  breach 145 

48.  Actor's  remedy  for  breach 146 

49.  Profits  as  a  basis  for  damages 149 

50.  Producer's  offer  of  re-employment  after  breach 154 

51.  Grounds  for  discharge 156 

52.  Actor's  breach  of  the  contract — damages 166 

53.  Changing  motion  jjicture 169 


Sec.  54.  Contracts  with  infants 173 

55.  Inability  of  producer  when  studio  closed  by  the  authori- 

ties    176 

56.  Questions  of  travel 177 

57.  Booking  agencies 178 

58.  Workmen's  Compensation  Acts 180 

59.  Garnishment 184 

60.  Serial  stories 185 

61 .  Escrow  agents 186 

62.  Where  joint  venture 187 

63.  Royalties  in  addition  to  salary 190 

64.  Law  governing  validity  of  contract 190 

65.  Contract  labor  and  exclusion  laws 191 

66.  Performance  in  unlicensed  theatre 192 

67.  Contracts  for  transportation — damages 193 

68.  Power  of  company's  officer  to  contract — agency 195 

69.  Costumes 197 

70.  Enticement  of  actor 198 

71.  Libel  of  actor 202 



His  Other  Employes 

Sec.  72.  Scenario  \\Titer » 205 

73.  Director  and  other  employes 209 



Sec.  74.  Distributor — in  general 214 

75.  Exhibitf)r  -in  general 225 

76.  Adverti.sing  matter,  programs,  bill-posters 228 



Sec.  77.  What  are  fixtures 232 

78.  Replevin  of  film  and  machine 235 

79.  Theatre 237 

80.  Theatre  a  nuisance 2.51 

81.  Franchise  and  booking  agreements 2.'>6 

82.  lienefit  performances — private  exhibitions 258 

83.  Interstate  commerce 260 

84.  Bankruptcy 261 

85.  Libel 264 



Right  of  Privacy 

Sec.  86.  In  general 267 

87.  When  liable  under  statute 274 

88.  When  not  liable  under  statute 278 

89.  When  use  of  name  or  picture  is  libelous 282 

90.  Weekly  news  motion  pictures 284 


THE    PUBLIC    (continued) 

Theatre  Proprietor's  Duty 

Sec.  91.  Right  to  exclude  patrons 291 

92.  Liability  for  injuries  sustained  by  patrons — In  general.  .  299 

93.  Falling  over  balcony 303 

94.  Seats  and  floors ^^-^ 

95.  Tripping  in  darkened  theatre — aisles — steps — exits 306 

96.  Articles  dropping 311 

97.  Wild  animals 313 

98.  Crowds 318 




Sec.  99.  Hurt  by  performer 319 

100.  Miscellaneous  accidents 322 

101.  Acts  of  strangers 325 

102.  Assault 326 

103.  Who  is  liable 331 

104.  Property  lost  in  theatre 335 


THE    PUBLIC    (continued) 


Sec.  105.  What  is  "Motion  picture"  "Theatrical  performance" 

"Theatre" 337 

106.  Necessity  for  license 345 

107.  Power  to  license  discretionary — Revocation 349 

108.  Extent  of  discretionary  power 351 

109.  Right  to  license  on  condition 358 


the  public  (continued) 


Sec.  110.  Buildings— Distances 362 

111.  Standees — Aisles — Closing 365 

1 12.  Operator  and  booth 367 

113.  Firemen — Fire-escapes — Exits 368 

1 14.  Admission  of  children 370 

115.  Hogulation  amounting  to  prohibition 371 

116.  Proliibition — Imniorahty 372 

117.  Wlio  is  liable  for  penalty 379 

118.  Ticket  "Scalping" 381 

119.  C:enHorHhip 383 

120.  Sunday  performance 391 




Titles — Marks  and  Devices 

"^  "  Paob 

Skc.  121.  Using  same  or  similar  titles 402 

122.  Use  of  title  after  copyright  in  work  expires 4.'i8 

123.  Infringement  of  titles— Titles  held  to  infringe 440 

124.  Infringement  of  title.s— Titles  held  not  to  infringe 445 

125.  Acquiescence  and  abandonment 449 

126.  Relief 4.5;j 

127.  Marks  and  devices 400 

12.S.  Transferability 463 

129.  Parties 467 

130.  Actions  at  law 468 

131.  Trade-mark  in  title  of  cartoon 469 



Miscellaneous  Matters 

Sec.  132.  Right  to  use  or  a.ssign  one's  own  name 477 

133.  Limitations  on  use — price  fixing 481 

134.  Restraint  of  trade 487 



In  General 

Sec.  135.  Common-law  rights 491 

136.  What  is  ."Secured  by  ecqn'right 499 

137.  How  copyright  is  secured 500 



Sec.  138.  Publication 503 

139.  Notice  of  copyright 510 

140.  Licensee's  failure  to  insert  notice 519 

141.  False  notice  of  copyright 520 

142.  Title— Changing  title 521 

143.  Who  may  secure  copyright 524 

144.  Belligerent  aliens 527 

145.  In  what  name  copyright  may  be  taken  out 532 

146.  Subjects  of  copyright — in  general 534 

147.  Immoral  and  seditious  works 535 

148.  Gags,  stage  business,  contrivances,  cartoons,  advertise- 

ments    536 

149.  Burlesques,  parodies,  inferior  copies 541 

150.  Copyrighting  revised  edition  of  work 543 

151.  Works  in  pubhc  domain 544 

152.  Component  parts 544 

153.  Term  of  copyright 546 

154.  Renewal  of  copyright 547 

155.  Assignment  of  copyright 550 

156.  Difference  between  assignment  and  license 557 


COPYEIGHT    (continued) 


Sec.  157.  Tests— What  is  protected 559 

158.  Primary  test 561 

159.  Common  sources 568 

160.  Substantial  similarity  by  coincidence 574 

161.  Who  may  maintain  action — Misjoinder  of  parties — 

Joinder  of  causes  of  action 577 

162.  Where  action  may  Im;  brought 585 

lf)3.  Who  is  liable— Intent 586 



Sec.  164.  "Wliat  must  be  alleged  and  proved 593 

165.  Bill  of  particulars 599 


COPYBIGHT    (continued) 


Sec.  166.  Actions  in  equity— In  general 602 

167.  Preliminary  injunction 602 

168.  Final  hearing 608 

169.  Injunction  as  to  part 619 

170.  Writ  of  seizure 621 

171.  Accounting 623 

172.  Actions  at  law 626 

173.  Actions  purporting  to  be  brought  under  the  Copyright 

Act 628 

174.  Willful  infringements 634 

175.  Statute  of  limitations 636 

176.  Construction  of  forfeiture  and  penalty  clauses 636 

177.  Appeal 638 


COPYRIGHT    (continued) 

Miscellaneous  Matters 

Sec.  178.  Return  of  copies  depo.sited 630 

179.  Pr()liil)ition  of  importation  of  piratical  copies 640 

180.  Ad  interim  protection 641 

181.  Bankruptcy— Title  in  trustee 643 

182.  Selling  secondhand  copies 646 

183.  Taxal)ility 648 

184.  Music  in  theatres 649 


Sec.  185.  Co-authorship 653 

186.  Employer  and  employe 653 

187.  Restraint  of  trade — Price  fixing — Monopoly 653 


COPYRIGHT    (continued) 

British,  Colonial  and  International  Copyright 

Sec.  188.  Copyright  in  United  Kingdom  and  Protectorates 654 

189.  Copyright  in  Newfoundland 658 

190.  Copyright  in  Commonwealth  of  Australia 658 

191.  Copyright  in  Dominion  of  New  Zealand 659 

192.  Copyright  in  Union  of  South  Africa 660 

193.  Copyright  in  Dominion  of  Canada 660 

194.  International  Copyright 672 


United  States  Copyright  Act  of  1909  as  amended  by  the  Acts  of 

1912,  1913  and  1914 677 

Tahulatod  List  of  Presidential  Proclamations  conferring  copyright 

l)r()tccti()n  upon  foreign  citizens  or  subjects 710 

Rules  of  the  Supreme  C'ourt  of  the  United  States  for  practice  and 
procedure  under  section  twenty-five  of  the  United  States 

Copyright  Act  of  1909 714; 

Presidential  Proclamation  of  April  9th,  1910 719 

C()i)yright  Convention  botwoen  the  United  States  and  Hungary.  .  722 
Copyright   Convention   between   the   United   States   and   other 

American  Republics 725 

Order  in  Oiuncil  of  dreat  Britain  of  February  3,  1915 732 

Presidential  Proclamation  of  January  I,  1915 735 

Staf<-in('nt  of  Register  of  C^opyrights  with  respect  to  copyright  of 

l:il)cls  and  jirint.s 739 


Rules  and  Regulations  for  the  registration  of  claims  to  copyright, 

as  revised  and  issued  in  November,  1917 740 

British  Copyright  Act  of  l'.)ll 762 

Previous  British  Copyright  Acts  not  repealed  by  the  British  Copy- 
right Act  of  191 1 801 

Canadian  Copyright  Act 812 

Rules  of  the  Canadian   Department  of  Agriculture  under  the 

Copyright  Act 833 

Convention  creating  the  International  Copyright  Union,  known 
a«  the  Berne  Convention  of  1908  and  commonly  referred  to 

as  the  Berlin  Convention  (text  in  English) 836 

(text  in  Frencli) 858 



Aaron  v.  Ward 291 

Ahorii  ('.  Janis lOfi,  174,  175 

Ahramovitz  v.  Tenzer. .  .360,  312 
Actiongescllscliaft  v.  Arnberg  450 

Adams  v.  Burke 481 

Adams  r.  (Irossmith 88 

Adams  r.  Fellers 224,  236 

Adams  r.  Fitzpatrick 143 

Adams  /•.  Folger 460,  585 

Adler,  Matter  of  Samuel.  ...    183 

Adier  c.  Miles 241 

Agawam  Co.  v.  Jordan 630 

A.  G.  V.  Shoreditch  Corpora- 
tion   362 

A.  G.  r.  Vitagraph  Co.,  Ltd. .  260 

Ahlstrand  r. 315 

Akinr.  Meeker 592 

Albera  v.  Sciaretti 126,  127 

Albert  r.    Interstate   Amuse- 
ment Co...  178,  191,  196,  256, 
258,  261 

Albrifiht  ('.Teas 553,  632 

Aldcn  r.  .\rnsky-\Vilson 445 

Alexander  r.  Potts 162 

\lexander  r.  Manners  Sutton    88 

Allen  V.  Flood 202 

Allen  r.  Walker 452,  465 

Allen  Hillposting  Co.  v.  King  229 
.\lmind  v.  Sea  Beach  Ry.  Co. 

281,  288 


American  Acad,  of  Music  r. 

Birt 124 

American  Clay  Mfg.  Co.  v. 

American  Clay  Mfg.  Co. 

441,  46;i 
American     Hungarian    Pub. 

Co.  v.  Miles  Bros 151 

American  Law  Book  Co.  v. 

Chamberlayne 27,  54,  55 

.Vincrican    League   c.    Chase 

American     Malting    Co.     v. 

Kcitel 54,  603 

American    Music    Stores    r. 

Kussell 113 

American  Ass'n  v.  Daily 

Story  Piib.  Co 520 

American    Tobacco    Co.    v. 

Werckmeister 505,  623 

American   Trotting    Reg.    r. 

Gocher 603 

American    Waltham    Watch 

r.  U.S.  Watch  Co 163 

Amoskeag  Mfg.  Co.  v.  Spear 

452,  459,  460 

Anderson  r.  Jjong 19S 

Andre  r.  Mertens 307,  308 

Andrews  r.  Chandler 233 

Andrews  v.  Kilgour 315 

Andrus  v.  Berkshire  Co 610 





Angers  v.  Leprohon 55 

Angle  V.  Chicago  &  St.  Paul 

Ry.  Co 202 

Anti-Vice     Motion    Picture 

Co.,  Inc.,  V.  BeU 373 

Appleton  V.  Welch 336 

Appollinaris  v.  Scherer 468 

Apthorpe  v.  Neville 73 

Archbold  v.  Sweet 55,  65 

Archer  v.  Willingrice  . .  .  343,  348 

Arden  v.  Lubin 84 

Arena  A.  C.  v.  McPartland. .  103 
Arkansas    Smelting    Co.    v. 

Belden 645 

Armstrong  v.  Majestic  Mo- 
tion Picture  Co 196 

Armstrong  v.  Savannah  Soap 

Works 468 

Armstrong  v.  Stair 329 

Arnold  v.  State 321 

Aronson      v.      Fleckenstein 
44,  406.  417,  429,  438,  443, 

492,  497,  531,  570,  581 

Aronson  v.  Orlov 628 

Ashley  /•.  Dixon 202 

AspinwuU  Mfg.  Co.  v.  Gill.  .     38 
Associated  Press  v.  Interna- 
tional News  Sers'ice 23 

Astor  V.  W.  82  St.  Realty  Co.  437 
Atcliison-Kly  r.  Thomas.  .  .  .  189 
Atkin.Hon  v.  Dohcrty.  .  .  .2iY.),  272 
Atlantic  Milling  Co.  v.  Rol)in- 

son 466 

Atla.s  Mfg.  Co.  V.  Street  & 
Smith.   404,418.410,424, 

134,  439,  447,  522,  534 


At\\nll  V.  Ferrett 594,  596 

Auckland  &  Brunetti  v.  Col- 

Uns 179 

Aughtrey  v.  Wiles 322,  323 

Aunt  Gemima  Mills  Co.  v. 

Rignay  Co 458 

Authors  &  Newspapers  Ass'n 

I'.  O'Gorman  Co 486 

Avery  v.  Langford 102 

Babicz  v.  Riverview  Sharp- 
shooters    331 

Bachman  v.  Belasco 572 

Baghn  v.  Cusenier  Co 450 

Bainbridge  v.  City  of  Min- 
neapolis  355,  357,  379 

Baker  v.  City  of  Cincinnati . .  359 

Baker  v.  Selden 560 

Baker  z?.  Taylor 514 

Baldwin  ?'.  Baird 632 

Bald\vin  v.  Burrows 47 

Ball    V.    Broadway    Bazaar 

417,  433 

Bancroft  v.  Scribner 645 

Banker  v.  Caldwell 492 

Banks  Law  Pub.  Co.  v.  Law- 
yers Co-operative 552 

Banks  v.  Manchester. . .  .511,  593 
Barber  i;.Penley.  .  .252,  253,  344 

Barclay  r.  Barclay 37 

Barnes  v.  Miner 537 

Barnes  v.  Stern  Bros 336 

Barnett  v.  Q.  &  C.  Co.  .6,  74,  85 
BarnswoU  v.  National  Amuse- 
ment ('o 297 

Baron  v.  Placidc 13'.> 



Barrett     r.     Lake     Ontario 

Beach  Imp.  Co 302,  'AZi 

liartlette  r.  Crittenden 50G 

Bartsch  r.  Hcrndon 51,  09 

Bass   Furnace  Co.   v.  Glass- 
cock  1G2,  1(53 

liassett  7".  Frencli 147 

Batchelder  r.  Standard  Plun- 

Rcr  El.  Co lG.i 

Batty  r.  Melillo 178 

liauer  /'.  O'Coiinel 4S2 

Bauineister  r.  Markhani ....  137 

Baxter  r.  Billings 48,  49 

Baylies  /•.  Bulloch 592 

Baylies  /•.  Curry 298 

Beck  r.  Carter 302 

Bccknian  v.  CJarrott 156 

Beer  r.  Canary 229 

lieiford  ;■.  Scrihner.  .19,  532, 

590,  598,  010 

Jielknapp  v.  Ball 03 

Bell,  ex  parte 344 

liell  r.  Locke 440 

Bell  r.  Mahn 340 

Bellamy  v.  Wells..  .252,  254,  344 

Bellis  V.  Beale 344,  349 

Bcllis  r.  Burghall 343 

Beltinck  r.  Tacoma  Theatre 

Co 230 

Bender  /'.  Kins 232,  234 

Benn  v.  Ix;  Clerq 411 

Bennett  r.  Carr 037 

Benson  /-.  McMahon 383 

Bentley  r.  Tii)l)als 544,  010 

Benton  r.  Pratt 202 

Benton  ;•.  Van  Dvke 003 


Benyaker  r.  Scherz 79,  190 

Bergen;  r.  Parker 129,  190 

iiernstein  r.  Aleech 79,  149 

Besozzi  V.  Harris 313 

Betterton's  Case 252 

Bettinir.  Gye 157,  166 

Bien  r.  Abbey 228 

Bierce  v.  Stocking 6^i0 

Billiken  Co.  v.  Baker  &  B.  Co.  455 
Bilordeaux   r.   Bencke   Lith. 

Co 120 

Binns  /•.  \'itagraph  Co..  .274, 

280,  286,  2SS,  290 

liinns  ('.  Woodruff 590,  619 

liiograph  Co.  r.  International 

Film  Traders..  .  .224,  225,  236 

Bird  i\  Everhard 336 

Bird  r.  Thanhau.scr 591 

Bird  V.  Welsh 592 

Bishop  r.  Viviana  &  Co. ..20,  537 
Black  V.  Allen  524,  550,  596,  608 
Black  V.  Ehrich..  .  .403,  405,  438 
Black  t'.  Imperial  Book  Co. 

557,  661,  671 
Blackledge  r.  Weir.  . .  .38,  42,  43 

Blackwell  v.  Dibrell 4.50 

Blakely  v.  Sousa.  .46,48,67, 

479,  480 
Blakely  v.  Wliite  SUir  Line. .  332 

Blank  i\  Mfg.  Co (M) 

Bleistein   r.    Donald.son.  .27, 

32,  r)0().  539,  541,  574 

Bli.'^s  /'.  Xegus 630 

Blitz  v.  Toovey 139 

Block    r.    City    of    Chicago 

337,  356,  372 




Bloom  V.  Nixon 19,  537 

Bloomer  r.  McQuewan 481 

Blovmt  V.  Societe Ill 

Blumei'.  Spear 511,  516,  522 

Bobbs-Merrill  v.  Equitable.  .   573 
Bobbs-Merrill  Co.  v.  Snellen- 

berg 486 

Bobbs-Merrill    r.    Strauss 

486,  496,  560 
Bobbs-Merrill  Co.  v.  Univer- 
sal Film  Mfg.  Co 78 

Boisseau   v.   Scola  Am.   Co. 

337,  344 

Bole  ;^  Pittsburgh  A.  C 318 

BoUes  V.  Outing  Co 513,  516 

Bong  V.  Campbell  Art  Co. .  .   527 

Boosey  v.  Empire 607 

Booth  r.  Jarrett 480 

Booth  V.  Lloyd 63 

Booth  r.  Richards 67 

Borman  v.  City  of  Alilwaukee  317 
Borthwick   v.   The   Evening 

Post 404,  448 

Bosselman      r.      Richardson 

594,  595,  598 

Bossner,  Inre 397,  398 

Bo.ston  Glass  Mfg.  v.  Binney  202 
lioston      Traveler      Co.     v. 

Purdy 637 

liosweli  r.  Barnum 292,  2<)4 

iioucicuult  V.  ( 'hatterton.  .  .  .   568 

lioucicault  V.  Delafield 526 

Boucirault  V.  Fox.  .  .29,  492,  506 
HoucicauU  r.  Hart.  .492,497, 

.-)0(;,  511.  .568,  593,  594 
Bf.iicicaiih  r.  Wood 492,  •>96 

Bourlier  Bros.  v.  Macauley.  .  200 
Bowden      v.      Amalgamated 

Pictorials 274,  281 

Boyd  V.  Dagenais 272 

Boyl    V.     Midland     Lyceum 

Bureau 117 

Bracken  v.  Rosenthal 539 

Bradbury,  Agnew  v.  Day.  . . .   538 

Bradbury  v.  Beeton 448 

Bradbury  v.  Dickens 467 

Bradner  v.  Mullen 336 

Brady  v.  Daly 563,  568,  638 

Brady  V.  Reliance 12,  14,  552 

Branch  v.  Klatt 306,  308 

Brand  v.  Godwin 113,  159 

Brandreth  v.  Lance 266 

Brandt  v.  Goodwin 157,  159 

Brearley  v.  Morley 341,  342 

Brennan  v.  Fox  Film  Corp. 

206,  210 

Brewer  v.  Wynne 357,  372 

Bridgeford  v.  Meagher 114 

Briscoe  ?j.  Litt 120,  140 

British-Ajnerican        Tobacco 
Co.    I'.    13nt.    Am.    C.    S. 

Co 424,  463 

Broadhurst  v.  Nichols.  .405, 

410,  445 
Broder  v.  Zeno  Mauvais  Co. 

536,  616 

Broemcl  v.  Meyer 449 

Brooks  V.  Taylor 314 

P/rown  ?'.  Baldwin  tt  (Sleason 

141,  163 

Ikown  V.  liatcliellor 320,  332 

Brown  ;'.  Nugent 349 



lirowii  r.  Rotsoff  Mfg.  Co.  .  .    Ill 

Brown  r.  S<j.  Kennel)ec 30G 

Brown  v.  Stublxs 3o0 

Brown  v.  United  States 528 

Brown  r.  Weir 194 

BrowninR  r.  ^'an  Rensselaer    65 

Bruce  r.  McManus 3S0 

Bruce  v.  Reed 209 

Brj'ant  r.  Logan 249 

Biu'lianan  v.  Curry 530 

liu(Mi/lo  r.  Newport 292 

Buffalo  Br.  r.  Breitinger.  . .  .  387 
Bullen  r.  The  Swan  Electric    88 

Bullcnr.  Ward 391 

Bullinger  r.  Mackey 597 

Bunnell  v.  Stern 33G 

Bureau  of  National  Litera- 
ture r.  Sells 648 

Burnoll  v.  Chown 571 

Burnett  v.  Snyder. 47 

Burns  v.  Burns 452 

Burns  r.  Herman 324 

Burrow  r.  Marceau 466,  480 

Burrow-Cliles  Lithog.  Co.  v. 
Sarony . . . 490,    513,    516,    596 

Burton  r.  Schcj)f 292 

Burton  ('.  Stratton 466 

Bustanohy  r.  Revardel 166 

Butcher  r.  Hyde 30S 

Buttcrick  Publ.  Co.  r.  Typo- 

grai^hical  Union 2S2 

liuttinan  r.  Dennett 336 

Buxton  r.  James 662 

Byrne  r.  Statist  Co 2(5,  2S 

Bytovetzski    v.    Edward    L. 
Wilson  Co 279 

Calcraft  v.  West .'J44 

Caldwell  v.  Cline 99 

California   Academy   v.   San 

Francisco 249 

California  Fig  Syrup  C'o.  r. 

Imp.  Co 4f).S 

Caliga   r.   Interocean    News- 

l)aixT  Co..  .496,  523,  598,  637 
Callaghan    v.    Myers... 514, 

532,  5.50,  59S,  614,  625,  626 
Camp    r.    Baldwiu-Mcllville 

Co 121 

Camp  V.  Wood 302,  3(U 

Campbell  v.  Honakers 2(53 

Campbell  r.  Portland  Sugar 

Co 302 

Campbell  v.  Spottiswood ....     63 
Canada  Publ.  Co.  r.  Beatty  440 

Canary  r.  Rus.sell 99,  101 

Candilis  «k  Son  v.  Harold  \'ic- 

tor  &  Co 530 

Canterbury  &  Paragon,  Ltd., 

v.  Lloyd 107 

Carlisle  v.  United  States.  ...   531 
Carlton  Illustrators  v.  Cole- 

maa 56,  591 

CariKMiter  Steel  Co.  v.  Nor- 

cross 162 

Carr  r.  Hood 64 

Carte  r.  Duff 5.37 

(^arte  r.  Evans.  .27,  32,  523,  550 
Carter  r.  Bailey.  .37,  41,  47, 

■193,  494,  504,  5S6 

Carter  r.  Ferguson 98,  100 

CartwTight  v.  Wharton 560 

Caswell  /•.  Hazard 410,  423 



Celluloid  Mfg.  Co.  v.  Cellonite  466 

Central  Brass  v.  Stuber 42 

Central   City  Sav.   Bank  v. 

Walker 47 

Central  Lith.  v.  Moore 228 

Central  Trust  Co.  v.  United 

States,  etc 617 

Cescinsky  v.  Routledge 45 

Chamberlayne   r.   Am.   Law 

Book  Co 27 

Chancellor  Oxford  Univ.   v. 

Wilmore   Andrews 442 

Chantrey,   Chantrey   &   Co. 

V.  Dey 32 

Chaplin  v.  Essanay 171 

Chapman  v.  Ferry 636 

Chapman  v.  Waterman 477 

Chappell  V.  Fields. .  .  20,  93, 

527,  536,  562,  603 

Chappell  V.  Harrison 124 

(yhappell  V.  Purday 661 

Charley  r.  Potthoff.  .79,  134, 

160,  247 
Chatauqua   School    /•.    Nat'l 

School 59S 

Chatterton  r.  Cave 561 

Cherry  r.  Des  IVIoines  Leader  203 
ChicuKo'Mus.  Co.  r.  liutlor.  .    593 

Chils  V.  (Jrouland 626 

Christy  v.  Murphy 480 

Church  r.  Ililliard.  .341,  392,  649 
Church  tt  Dwight  r.  liuss.  .  .  461 
City    of    Boston    )'.    SclialTcr 

347,  359 
City  of  Buffalo  v.  Chadeaync  358 
Citvof  liuffalo  r.  Hill 355 


City  of  Chicago  v.  Powers. .  382 
City  of  Chicago  v.  Shaynin 

365,  372 
City  of  Chicago  v.  Stratton . .  365 
City   of   Chicago   v.   Weber 

251,  344,  368 
City   of   Clinton   v.   Wilton 

396,  398 
City    of    Duluth    v.    Marsh 

352,  359,  365 
City  of  Hartford  v.  Parsons .  .   368 
City  of  Indianapolis  v.  Daw- 
son  327,  328 

City  of  Indianapolis  v.  Miller 

251,  344,  367 
City  of    Mobile  v.  Kiernan 

260,  347,  361 
City  of  New  Orleans  v.  Hop 

Lee 369 

City   of   New   York   v.   Al- 

hambra 396 

City  of  New  York  v.  Williams  399 
City  of  St.  Louis  v.  Nash ....  364 
City  of  Topeka  v.  Crawford . .  398 

Clark  V.  Bishop 339,  340 

Clark  V.  Freeman 270 

Clark  Paper  &  Mfg.  Co.  v. 

Stonacker 96 

Clark  V.  North  American  Co.  283 

Clark?;.  West "77 

Clarke  r.  Searle 349 

Clary-S(iuire  v.  Press  Publ. 

Co 283 

Clay  ?'.  People 210 

Clemens  v.  Bclford.  .57,  60, 

62,  506,  533 




Clemens  r.  Estes 4SG 

Clemens  r.  Press  Pub.  Co. .  5.3,  6.3 

Clifford  r.  Brandon ;«0 

ClilTord's    Olynipia     Co.     r. 

Waters 121 

Clinical  Obstetrics,  In  re.  .  .   .5.57 
Clinton    Metallic    Paint    v. 

N.V.  Metallic  Paint..  421,  4.55 

Cluni  /".  Brewer .3S,  42 

Cluney  r.  Iah}  Wai 2.>t 

Clyne  r.  Helmes 'Mi 

Cobb  r.  Knapp 197 

Cocks  /'.  Purday 6Go 

Coffeen  v.  Brunton 461 

Coghlan  v.  Stetson 133 

Cohen  v.  Mutual  Life.  .  .528,  5.30 
Cole  r.  Rome  Sav.  Bank .  .  320, 333 

Coleman  r.  Wathen 497 

Coles  i\  Sims 102 

Colgate  V.  Wliite 27S,  607 

Colles  r.  Manp;ham 179 

Collier  r.  Imp.  Films  Co.. 435,  522 

Collier  v.  Jones 442 

Colliery     Engineer     Co.     v. 

United    Corresp.    Schools 

Co 27,  32,  .34,  20S 

Collins     T.     Public     Ledger 

Co 61 

CoUister    v.    Ilayman.  .291, 

293,  294 
Columbia  Mill  Co.  r.  Alcorn  410 
C()luml)ian   Lyceum   Binvau 

('.  Sherman 134 

Colyer  r.  Fox  Publ.  Co.  .281, 

284,  287 
Comerina  r.  Comerma 6.33 

Commercial  Advertising'n  r.  Hoques 446 

Commonwealth  r,  Alexander 

259,  260,  398 
Commonwealth     r.     Cincin- 
nati     255 

Commonwealth  v.   Donnelly 

340,  .342 
( 'on mion wealth  v.  George.  .  .  299 
Commonwealth  v.  Keoler.  .  .  .345 
Commonwealth  i\  Kneeland  210 
Commonwealth   r.   McGann 

345,  346,  349 
Commonwealth  r.  Powell.  .  .  329 

Commonwealtli  r.  Ray 383 

ComnKjnwealth      v.      Spiers 

338,  342 
Commonwealth  r.  Twitchell  .346 
ComuKjnwealtli  v.  Wcidner.  .  .392 
Com.stock  V.  Lopokowa.  .93, 

96,  HI 
Coney    Island    v.    M'Int>Te- 

Paxton  Co 245 

Connor    r.    The    Princess 

Theatre 316 

Ccmrad  v.  Clauve 321,  3.32 

C\)nreid  Metrop.  Opera  Co. 

r.  Brin 83,  167 

Cooper  r.  Stone 64,  65 

Cooper  V.  Stephens 554 

Coojx*r  r.  Whittingham .56 

Corbett  r.  Purdy..403,  42*),  .522 

Corelli  ;•.  (Jray .576 

Corelli  r.  Wall 270,  277 

Corliss  i\  Walker 272,  27S 

Corsi  r.  Maretzek 157,  1«)7 




Cort  r.  Lazzard   99,  100 

Cortesy  v.  Territory' 391 

Cosby  V.  Robinson 355 

Cotton  V.  Sounes 123 

Cousineau  v.  Muskegon. .  . .  325 

Cox  r.  Coulson 320 

Cox  V.  Cox 33,  55 

Cox  r.  Sports  Publishing  Co.  448 

Cramer  v.  Klein 255 

Crane  v.  Kansas  City  Base- 
ball    322 

Craxvford  v.  Mail  and  Express 

Pub.  Co 104,  112,  208 

Cream  Co.  v.  Keller 477 

Cremore  r.  Hul)er.  .298,  325,  327 

Crepps  v..  Burden 391 

Croasdale  v.  Tantum 64 

Cronin  v.  Bloewecke 255 

Crookes  v.  Petter 56,  212 

Crossman  v.  Gr'ggs 465 

Crotch  V.  Arnold.  ..404,  449,  522 

Crow  V.  State 397 

Crowe  V.  Aiken. . .  .492,  584,  586 
Crowley    v.    Rochester    Fire 

Works 301 

Crown  Feature  l-'ilm  r.  Betts 

594,  622 
Crown  Feature  Co.  v.  Levy 

595,  596 

Crutcher  v.  liig  Four 269 

Cuervo  r.  Henkell 450 

Cuml)erland  /•.  Copeland.  ..  .    552 

Curran  r.  Birdsall 38 

Currier     r.     Boston     Music 

Hall 325 

("luricr  /'.  Tlonderson 312 

Curtis  &  Dodd  v.  Struthers.  .  144 
Cutting  V.  Miner 149 

D'Altomonte  v.  N.  Y.  Herald  274 
Da   Prato    Statuary    Co.    v. 
Giuliani  Statuary  Co.  .541,  545 

Dailey  v.  Super.  Court 266 

Dale  Rejaiolds  v.  Trade  Pa- 
pers Publ.  Co 448 

Dallas  V.  Murry 121 

Dalton  V.  Hooper 309 

Daly  V.  Brady 567,  568 

Daly  V.  Palmer.  . 20, 538, 562, 

567,  569,  587 

Daly  V.  Smith 96 

Daly  V.  Stetson 80 

Daly  V.  Wabash 61 

Daly  p.  Walrath 496,  507 

Daly  V.  Webster.  . .  .20,  524,  540 
Dam  ?'.  Kirk  La  Shelle..l3, 
17,  22,  546,  556,  558,  566, 

614,  626,  627 

Dana  v.  Fielder 125 

Dann,  In  re 644 

Danville  Press  v.  Harrison. .   210 
Daversa  v.  Davidson's  Sons 

Co 114 

Davies  v.  Bowes.  .23,  24,  598,  ()16 

Davis  V.  Dodge 140,  147 

Davis  V.  Epoch  Producing  Co. 

224,  228 

Davis  r.  Foreman 100 

Davys  v.  Douglas 364 

Day  r.  Klaw 134,  178 

Day  V.  Luna  Park 251,  264 

Day  ;;.  Siniijson 339,  344 




Day  r.  Webster 455,  463 

Day  r.  Wood  worth 469 

I)e  Hegnis  ;•.  Artnistead.  .  .  .    192 

DeHekkcr  r.  Stokes 57.  212 

DeCarltuii  r.  (ihiMT..  .  .120,  125 
De  Francesco  r.  Barinuii..l()7,  175 
De  Gellcrt  v.  Poole.    121 ,  \VA,  1(11 

De  (!ray  v.  Murray 316 

De  Jons  r.  Hehrinan 202 

De.JoiiK  r.  Hnicker 541,  593 

De  Koveii  r.  Lake  Shore  & 

M.  Co 110 

De  Loniz  r.  McDowell.  .155,  150 

DePol  /'.  Sohlke 98 

De  Sando    r.   X.  Y.  Herald 

Co 283 

De  \'eliii  r.  Swanson 311 

De  N'ere  r.  (Sihnore 122 

De    Witt    r.    l-:iinira    Nobles 

MfK.  Co 38,39,43,46 

De  Zeidmer  r.  Lamm 157 

Dean  /•.  lunerson 479 

Dcariiii^M-.  Pearson.  148,  155,  156 

Decatur  r.  Porter 325 

Decker  r.  Ktchison 513,  611 

Delmour  r.  Forsythe 336 

Delaney  v.  Hoot 40 

Dennison  r.  Aslidown 28 

Dennison  Mig.  Co.  r.  Thomas 

Mfg.  Co 461 

Denny  r.  Wright  it  Cobb .  ...    181 

Densmore  v.  l^vergreen 365 

Denver  r.  Hallett 249 

Deubert    v.    City    of    New 

York 599 

Development  Co.  v.  King  140,  15() 


Devlin  v.  Devlin 477 

Deyo    r.    Kingston    Consol. 

R.  R.  Co .301 

Diamond  r.  Mendelsohn. ...  114 
Diamond  Match  Co.  v.  Roe- 

ber 102 

Diixlin  r.  Swan 202 

Dick  V.  Yates 4a3,  404,  522 

Dickey  v.  Linscott 157 

Dickey    v.    Mctnj    Pictures 

Corp 421,  444,  457 

Dickey  v.  Mutual  Film  Corp. 

411,   418,   420,   422,   424, 

444,  456 

Dickiii.son  r.  Callahan 48 

Dick.son  v.  Waldron 301,  326 

Dielman  v.  White 27,  596 

Dictze  /'.  Riverview  Park.  .  .  'S^i2 

Dillon  I'.  Pearson 448 

Dis  Debar  v.  Hoeffle 136 

Distington  Hematite  r.  Pos- 

sehl 528,  530 

Dixey  v.  A.  H.  Woods  Prod. 

Co 131 

Di.xon  v.  Corinne 623 

Dixon  Crucible  Co.  i\  Gug- 
genheim   479 

D'Ole  V.   Kansas  City  Star 

505,  609 
Doan  ('.  American  Hook  Co. 

486,  647,  64S 

Dockerell  t\  Dougall 270 

Dock.'^tader  v.  Reed 108,  lOi) 

Dodil  /•.  Smith 486 

Doherty  r.  Allman 100 

Donaldson  c.  Hecket 495 

XX  vm 



Donellan,  In  re 398 

Donnell}'^  v.  Ivers 523 

Douglas  V.  Merchants'   Ins. 

Co 143 

Douglas  V.  Stokes 272 

Dow  V.  Henderson 334 

Dovvling  V.  Livingstone 63 

Drake  P.  Hall 42 

Drayton  v.  Reid 162 

Dressier  v.  Keystone  Film  Co. 

190,  221 

Drew  V.  Peer 328 

Dreyfus   v.    City    of    Mont- 
gomery  365,  372 

Drummond  v.  Altemus. .  .58,  212 
Drummond  v.  Atty  Gen'l .  .  .   140 
Du  Pont  Powder  Co.  v.  Mas- 
land  213 

Du  Puy  V.  Post  Telegram. . .   540 

Du  Tremble  v.  Poulin 316 

Duck  V.  Bates 343 

Duckr.  Mayer 593 

Dudley  v.  Abraham 311 

Duff  I'.  Russell 99,  136 

Dugan  V.  Anderson 147 

Duff  V.  Russell 162 

Dunham  v.  The  Indianapolis 

R.  R.  Co 39,  43 

Duniway   Publ.   Co.   v.  The 
Northwest      Printing      & 

Publ.  Co 446 

Duiilop  V.  United  States.  .  . .   535 
Dunn  r.  Agricultural  Soc. ..   332 

Dunning  r.  Jacobs 304 

Dunton  r.  Derby  Co...    144 
Dutton  r.  ('iip|)l(!H 457,  475 


Dwyer  v.  Hills  Bros 311 

Dyckman  v.  Valiente 40 

E.  C.  T.  Club  V.  State  Racing 

Com 355 

Eaton  V.  Lake 30 

Economopoulos  v.  Bingham 

338,  339,  348,  392 
Eddy   V.    American   Amuse- 
ment Co 145,  195 

Edelsteini'.Bell.. .  .357,  376,  379 
Edelstein  v.  Edelstein. .  .461,  469 

Eden  v.  People 396 

Eden  Musee  Co.  v.  Bingham 

373,  393,  400 
Edison  v.  Am.  Mutoscope  Co.  490 
Edison   v.   Edison   Polyform 

Co 61,269,273 

Edison  v.  Lubin 338 

Edison    Storage    Battery,  v. 

Edison 460 

Edling  V.  Kansas  City  Base- 
ball    322 

Edwards  v.  Cissy  Fitzgerald    97 

Edwards  v.  Cotton 558 

Edward  v.  McCIellan .  .  337, 

338,  393 
Edwards  v.  N.  Y.  &  H.  R.  R. 

Co 302,  304,  319,  333 

Egan  V.  San  Francisco 249 

Egbert  r.  Sun  Co 165 

lOichel  k  Colligan  v.  Woods. .   573 

luseman  v.  Schiffor 465 

Eisfeldt  V.  Campbell 566 

Elen  V.  London  Music  Hall 

124,  204 



Elgin  Nat.  Watch  ("o.  r.  Ill- 
inois VVtitch  Co 455,  463 

Kliot  V.  Jones 275 

lllkin  &  Co.  V.  Francis,  Day 

it  Iluntor 438 

Ellis  r.  Marshall 539 

Ellis V.  No. AmericanTheatres  361 

Ellis  c.  Ogden 539 

I'^llis  /'.  Thompson 79 

Ellslcr  r.  Hrooks 150,  153 

Emerson  v.  Davies 502,  570 

Emerson  v.  Nash 283 

Empire  City  Am.  Co.  v.  Wil- 
ton  538,  580,  593 

Encyclopedia    Britannica    v. 
American  Newspaper  Ass'n  608 

Engcl  V.  Shubert 143,  190 

Ejjstein  r.  Cordon 327,  335 

l">nst  r.  (Irand  Rapids  Engr. 

Co 162 

Ervin  v.  Woodruff 317 

Estes  r.  Leslie 439,  442 

Estesr.  Williams 403,  4;59 

Estes   V.    Worthington.  .439, 

442,  591 

Evans  c.  Morris 665 

I'^vcrson  c.  Powers 145,  148 

lCve.s.s()n  ('.  Zi(>gfeld 148 

Ewen's  Colonial  Stamp  Mar- 
ket, Ltd.,  V.  Federal  Stamp 

Co 445 

Ewing  r.  Chase 309 

]']wing  /'.  Oshaldiston 192 

I'Acolsior  V.  Pacific 582 

Exchange  Telegraph   Co.   r. 
Howard 23 


Pagan  r.  Aborn 122 

Fairbank  Co.  c.  Windsor.  .  .  421 

Fairbanks  v.  Luckel 4.52 

Fairbanks  v.  Montreal  St.  Ry. 

Co 325 

Fairfax  r.  Hunter 528 

Fake  v.  Addicks 316 

Falk  r.  Donaldson 564 

Falk  V.  Cast.  .505,  517,  623,  637 
I'arlcy  v.  Evening  Chronicle 

Puijl.  Co 283 

Farmer  v.  Calvert 594 

Farmer  r.  Elstner 564,  620 

Farmers'  Handy  Wagon  Co. 

V.  Beaver 460,  584 

Farndalc  v.  Bainbridgc 348 

Fay  r.  Bignell 342,  649 

Fay  V.  Harrington 264,  265 

Fechter  r.  Montgomery. .  105,  207 

Feinstein  r.  Jacobson 102 

Fennar  r.  Atlantic  Am.  Co. .  .  324 
Penning  Film  Service  v.  Wol- 
verhampton  225,  587 

Fenstcrmaker      r.      Tribune 

Pub.  Co 270,  284 

Fenton  v.  Clark 156 

Ferguson,  Ex  parte 396 

Ferris  v.  Frohman 509,  618 

Fichtel  r.  Barthel -608 

Fichtenberg  r.  .\tlanta 392 

Filburn   r.  Peoples  P.   &  A. 

Co 317 

Finney's   Orchestra    i\    Fin- 
ney's Famous  Orchestra .  .  465 
Fire  Department  r.  Hill.  .369, 

380,  .587 



Fire  Department  v.  Stetson 

369,  380 
Fishel  V.  Lueckel..  .564,  591,  610 
Fischer  v.  Automobile  Supply 

Co 600 

Fischer  v.  Blanch 459 

Fisher  r.  Monroe 121,  156 

Fisher  v.  Star  Co.  .474,  475,  631 
Fitch  V.  Young.  .  17, 498, 557, 

558,  582 
Fitzgerald  v.  George  Newnes  162 
Flagstaff  Silver  Co.  v.  CuUins  391 
Flanagan  v.  Goldberg.  .  .311,  326 

Fleron  v.  Lackaye 92 

Fletcher  v.  New  Orleans ....   636 
Florence  Co.  v.  J.  C.  Dowd.  .  454 

Folsom  V.  Marsh 564 

Forbes  r.  Howard 232 

Ford  V.  Blaney  Amusement 

Co.. 13,   16,   17,  22,  546, 

556,  557,  594,  595 

Ford  V.  Hcaney 275 

Forsythe  v.  McKinney 162 

Foster-Milburn  v.  Chinn  273,  283 
Foster's  Agency,  Lim.,  v.  Ro- 

maine 179 

Fountain     Sq.     Theatre     r. 

Evans 130,  397 

Fowler  v.  Holmes 301,  327 

Fox    V.    Buffalo    Park.. 300, 

302,  312,  332 

Fox  V.  Dougherty 322 

Fox  V.  McClollan.  .351,  373, 

394,  398 

Francis  v.  Cockrcll 302,  303 

Francis  v.  Flynn 273 


Francis  v.  Oliver 582 

Francis    Day   &    Hunter    v. 

Feldman  &  Co 506,  656 

Frankenstein  v.  Thomas ....  499 
FrankUn  Film   Corporation, 

Matter  of 355 

Fraser  v.  Barrel 586 

Fraser  v.  Berkeley 65 

Fraser  v.  Edwardes 591 

Fraser  v.  Yack 526 

Frazee  v.  Edeson 104 

Frazer  v.  Frazer 477 

Fredericks  v.  Howie 344 

Fredericks  v.  Payne 340 

Freeman  v.  Trade-Reg.  .593,  595 

Freligh  v.  Carroll 538 

French  v.  Day 588 

French  v.  Gregory 590 

French  v.  Jones 358 

French  v.  Kreling 498,  632 

French  v.  McGuire 492 

French  v.  Quincy 250 

Frohman  v.  Fitch.  .2,  3,  8, 

75,  418 

Frohman  v.  Mason 149 

Frohman  v.  Miller.  .404,  447,  459 
Frohman    r.    Morris.  .407, 

419,  429,  443,  456 
Frohman    v.     Pay  ton.  .417, 

419,  429,  443,  456 
Frohman  Amusement  Co.  v. 

Blinkhorn 225 

Frowde  n.  Parish 32 

Fniit  Cleaning  Co.  v.  Fresno 

Homo  Packing  Co 532 

Fry  V.  Bennett 264 




Fullorr.  Bomis 20,  .WS 

Fuller  V.  Brown 15(i 

Fuller  V.  D(»\viiinK ll-t 

Fullerr.  Hull 457 

Fuller  V.  McDonnott 2S() 

Gabriel  r.  McCabe 72,  172 

Ciaiety    Tlietvtre     v.     Cissy 

iWtus KX) 

Gaittin  v.  Searle 158 

Gale  r.  BiiiKliam 300 

Gale  I'.  Lockie 70 

Gallagher  /•.  lludd 307 

Galliher  v.  Cachvcll 008 

Gallini  v.  Laborie 192 

Gannert  v.  Rupert 442 

Garrett  v.  Messenger 340 

Gast  V.  Falk 010 

Gates  I'.  Fraser 38 

Gath   V.    Interstate   Amuse- 
ment Co 138,  178 

Gaumont  r.  Hatch 578 

Gause  V.  Knapp 599 

General  Film  Co.  v.  Kalem 

(ieiu'sce    l^ecreation    Co.    v. 

lOdgorton.  .351,  354,  355, 

350,  373 

George  r.  Smith 410 

George  r.  I'liiv.  of  Minn.  .  .  .   325 
"George,  the         Count 

Joannes"  v.  Burt 05 

Gerald  r.  Inter  Ocean  Pul). 

Co 204 

(Jibson     /'.     Carruthers    Kx- 

chcquer ()0,  70 


Gilbars  v.  Jefferson 132 

Gilbert  r.  The  Star (507 

Gilbert  r.  Workman 57 

(Jill  f.  United  States.  .27,  32,  5.50 

Ciillett  V.  Bate 044 

Gilligham  i?.  Ilay 223,  228 

Ciilman  r.  Lamson  Co 113 

Giim  r.  AppoUo 625,  648 

Ginsberg  v.  Friedman.  .  .114,  103 

Gilmore  v.  Anderson 590 

Glaser  v.  St.  Elmo.  .403, 429, 

439,  447,  522,  571,  573 
Glen  &  H.  Mfg.  Co.  v.  Hall 

418,  407 

Glenny  v.  Lacy 115,  208 

Glenville  v.  Selig  Polyscope 

Co 589 

Glinseretti  v.  Rickards 161 

Glyn  V.  Miner 116 

Glyn    V.    Western    Feature 

Film  Co 535,  542,  599 

Cilynn    v.    Lyceum    Theatre 

Co 303,  306 

(joddard  v.  Morrissey 135 

Goelet  V.  Frohman 239 

Goldberg  v.  Popular  Pictures 

Corix)ration.l53,  187,  216,  219 
Golders  Green  Am.  &  Dev. 

Co.  V.  Relph 167 

Goldmark    i\    Krcling.  .400, 

500,  583 

Goldstein  v.  Levy 311 

GoUansz  v.  Dent 77 

(Jonsolis  r.  Gearhart 103 

Gooding  r.  Chutes 314 

Goodrich  c.  Busse 305 



Goodyear  Shoe  Mfg.  Co.  v. 

Jackson 634 

Gordons.  Barr 99,  175 

Gottt-.  Pulsifer 64,  264 

Gottsberger  v.  Aldine 504 

Gould  V.  Banks 550 

Gould  V.  Springer 232 

Goulds;.  State 398,  400 

Gould's  Case 181 

Graddon  v.  Price 157 

Graham  v.  McKimm 65 

Graham  v.  Payne 316 

Grannan  v.  Westchester  Rac- 
ing Ass'n 296 

Grant  v.  Maddox 105,  124 

Grant  Richards,  In  re.  . .  .69,  647 
Gran  v.  McVickar. .  135,  196, 

237,  251 

Graves  v.  Garrie 672 

Gray  v.  Russell 564 

Gray  v.  The  0.xford,  Lim .  164, 192 

Gray?;.  Wulff 118 

Greater  N.  Y.  Film  Rental 

Co.  V.  Biograph 490 

Green  v.  Botheroyd 344 

Green  v.  Chapman 203 

Green  v.  Luby 503,  543 

Green  v.  Minzenshcimer.  .  .  .   542 

Green  v.  Savanali 365 

Cireenburg  v.  Early 70 

Grccnburg     v.    West.     Turf 

292,  296 

Groono  r.  Bishop 621 

Greene  r.  Seattle  A.  C 304 

Greonhali     Theat.     C'irc.     v. 
M:irkr)\vitz 135,   1  16 


Greenough  v.  Allen  Theatre  363 

Gregory  v.  Brunswick 331 

Gregory    v.    Tavernor.  .342, 

343,  649 
Gregory  r.  Tuffs.  .343,  344,  348 
Griffin  y.  Brooklyn  Ball  Club  165 
Griffith  V.  Tower  Pub.   Co. 

51,  67,  68,  69,  646 

Griggs  V.  Perrin 571 

Grimston  v.  Cunningham,.  96,  105 

Grinnell  v.  Kiralfy 160 

Griswold  v.  Ringhng 319 

Grocers  Journal  Co.  v.  Mid- 
land Publishing  Co 446 

Gross  V.  Seligman 539 

Gross  V.  Van  Dyke. .  590, 618,  619 
Grossman  v.  Canada  Cycle 

Co 506,  665 

Grotev.  C.,etc.,n.  R 302 

Gunter  r.  Astor 202 

Gustin  V.  Record  Pub.  Co . . .  623 

Haag  V.  Rogers 121,  162 

HaasiJ.  Feist..519,  533,  592, 

613,  614 

Ilackctt  r.  Walter 91 

Hagan    and    Dodd    Co.    v. 

Rigbers 469 

Haggard  v.  Waverly 519 

Ilahn  r.  The  Concordia  So- 
ciety     101 

Haines  v.  Thompson 120 

Haiiuiue     v.     Cyclops     Iron 

Works 161 

Ihilcrofl    r.   West    Kml    Pliiy- 
iiou.'^c,  \jU\ 17G 




Hall  ;•.  Aronson \'2{) 

Hall   /•.  CrcfMi :i42,  'M.i,  (H'.( 

Hall  r.  Pritclu'tt \S\ 

•Halloii  r.  Tliompson 120 

Hallcy  V.  Alloway 2;« 

Hallyhurtoii  r.  Burke  Co.  .  .  .  321 
HaliKTii  r.  Manhattan  Ave. 

Theatre  Curp 2")! 

Halstead  v.  Grinnan 608 

Haiiiilton  Shoe  Co.  v.  Wolf 

409,  403 

Hamlin  r.  Bender 255,  396 

Hainmerstein,     Matter     of 

351,  380,  398,  588 
Harnnierstein  v.  Belasco.  .  .  .  238 
Hainmerstein  v.  Mami.  .100, 

108,  110,  175 
Hammerstein  v.  United  Book- 
ing Offices 257 

Hammond  r.  Melton 315 

Hammond  Publishing  Co.  v. 

Smy the 486 

Hanfstaengl  v.  Smith 543 

Hanlin  v.  Walters 138 

Haimeton  v.  ICno 65 

Hanover  Milling  Co.  v.  Met- 

calf 458,  475 

Hanson  r.  Jaocard 583 

Hap(>lman  r.  Poole 1S3 

Hardacrc  v.  Armstrong.  .552, 

5!)2,  596,  613 

Hardie  v.  Balmain 176,  177 

Har](\v  /'.  Henderson.  ..  .158,  100 

Harms  r.  Stern 33,  20S,  ()15 

Harper    v.    Donohue.  .495, 

496,  554,  577,  649 


Harper  r.  Holman ()03 

Har|)er  r.  Klaw 2,  3,  H,  9 

Harper  r.  Lare 140 

Harper  r.  Ranous.  .403,  40 J, 

437,  522 

Harper  r.  Shopix'll 587,  .589 

Harrington,  ex  parte 352 

Harrington  r.  Stillman 599 

Harris  r.   Carstens  Packing 

Co 315 

Harris  v.  Crawley 323 

Harris  v.  Commonwealth .  .  .    537 

Harrison  v.  Baltimore 369 

Harrison  r.  Conlan 70 

Harrison  v.  Maynard-Mcrrill, 

486,  632,  047 

Hart  V.  Aldridgc 202 

Hart  V.  City  Theatres 244 

Hart   V.    Cort.  .6,   73,    124,    125 

Hart  r.  Fox 82,  493,  592 

Hart  V.  Tliomp.^on 119 

Hart  ('.  Townsend 65 

Hart  V.  Wall 203 

Hart  V.  Washington  Park. . .  325 
Hart  V.  Woodbury  Dermat. 

Institute 28.3 

Harter.  De  Witt 57,  58 

Hartford  Fire  Ins.  Co.  r.  Wil- 
cox       .50 

Hartford  Print  Co.  r.  Hart- 
ford Directory 609,  026 

Harvey  r.  Tivoli,  Manchester 

Ltd KW 

Ha.skell  p.  0.sborn 110 

Hathaway  v.  Sabin 197 

Hatton  r.  Kean 2S,  .")2 




Haven  v.  Russell 73 

Hawkes  v.  Whaley,  Royce  & 

Co 671 

Hayes  v.  Smith 316 

Hays  V.  Eldor  Am.  Co 324 

Hays?>.  MiHer 314 

Hay  ward  v.  Hay  ward 184 

Hazzard  v.  Hoxie 230 

Heap  V.  Hartley 71 

Hearne  v.  Stowell 283 

Hefel  V.  White  Land  Co 516 

Hegeman  v.  Hegeman 479 

Hegeman  v.  Springer 637 

Hcin  V.  Harris 576 

Heine  v.  Applcton 27 

Heineman  v.  Smart  Set 26 

Hcndershott   v.    Modern 

Woodmen 310 

Henderson  v.  Tompkins. .  534, 

535,  594 
Hendricks  v.   Thomas  Pub- 
lishing Co 617 

Hene  v.  Samstag 538 

Heneky  v.  Stark 85 

Hennessy  v.  Herrmann 467 

Henry  v.  Cherry 269 

Henry  ».  Dick 46,  484 

Henry    Bill    Pul)l.     Co.    v. 

Srnythc 647 

Herbert  v.  Fields 39,  40,  52 

Herbert    v.    Shanlcy .  . .  340, 

341,  348,  392,  649 
I  Icrbert  r.  Universal  Talking 

Machine  Co 277 

Herbert  v.  Weber 52 

Hereford   (Hislu.p)  r.  Cridin     29 


Heme  v..  Liebler 41,  68,  75 

Herrick  v.  Wixon 322 

Herring   v.   Gas   Consumers 

Ass'n 45 

Herzog  v.  Heyman 633 

Heye  y.  Tilford 47 

Hicks  V.  Maxton 181 

Hier  v.  Abrahams 456 

Higgins  V.  Franklin  Co 325 

Higgins  V.  Keufel 518 

Higgins  V.  Lacroix 358,  371 

Hillzj.  Gibbs 44 

Hill  V.  Haberkorn 105 

Hill».  Lockwood 468 

Hill  I'.  Whalen 542,  582 

Hillis  &  Co.  ?^.  Hoover 623 

Hillman  v.  Star  Publ.  Co .  269,  275 

Hills  V.  Austrich 516 

Hills  t'.  Hoover 516,  623 

Hilson  V.  Foster 411 

Hinton  v.  Locke 125 

Historical  Publishing  Co.  v. 

Jones 582,  584,  602,  620 

Homng,Inre 192 

Hodges  V.  Mayor 359 

Hodkins  v.  McDonald 191 

HofTman  v.  Bond 349 

Hoffman  v.  LeTraunik.  .535,  603 
Hole  V.  Bradbury.  .  .  .51,  67,  646 

Hollenback  v.  Clemmer 307 

Hollis  V.  Kansas  City  Assoc. 

332,  334 
Holmes?'.  Hurst..  13,  IS,  496, 

507,  546,  556,  560,  561 
Holmes  v.  United  Theatres.  .  311 
Home  Fire  Ins.  Co.  v.  Barber  144 




Homo   (tf    Iii('l)iiat('s   r.  San 

Francisco 21'.) 

Hopkins  Amuse.  Co.  r.  I-'roli- 

inan 417,   IM 

Horner  r.  (Jtiardian  Mut.  Life 

Ins.  Co N;i 

Homey  r.  Nixon..  .2i)2,  293,  294 
Il'jstetter  v.  Hrueggenian.  .  .  .   461 

Houck  r.  Ingles ;J9.J 

Howard  /•.  Carlton 455 

Howard  r.  Daly 147,  14S 

Howard  v.  Ilenriciucs 41S 

Howard  r.  Lovett 443,  477 

Howard  v.  Woodward 102 

Howe  V.  Rohin.son 120 

Howell  V.  Miller 591 

Howley     Dre.s.ser     Co.,     In 

ro 040 

Hoxey  i\  Chaney 400,  47!) 

Hoyt  r.  Hates 553 

Iloyt  V.  Fuller 99 

IIul)l)ar(l  /'.  Mathews 530 

Huijhard  v.  Miller 102 

IIul)l)anl  r.  Taunton 21!t 

H'.ihhanl  r.  'V\un\\\)s{)\\ (iO? 

Ilubheil    ('.    Koyal    Paslinic 

Amusement  Co ('».")  1 

Hubges  /'.  Helasco 505 

Hud.son  Bldff.   Co.   /-.   Coin- 

pa^iiic    CliMi.     Tninsatlaii- 

ti(iue 143 

Hubinger  v.  Kddy 401 

Huebsch  v.  Crist.  .5!)4,    59S, 

013,  OlS 

Hughes  r.  Stratham 479 

Hull,  Re  C.  W 395,  397 

Hull  I'.  86th  St.  Amusement 

Co 298 

Humiston  v.  Universal  Film 

Mfg.  Co 28.5 

Humphrey  J".  Sea  Gull  Sjx?- 

ciahy  Co K2 

Humphries  v.  Armstrong..  .  .  605 
Humphries  r.  Tiiompson..  .50,  57 
lluneckc  /•.  W.  lirighton  Am. 

Co 300,  .323 

Hunt  r.  Bennett 209 

lluntington  v.  Claflin 143 

lluist  ;•.  Picture  Theatres,  Ltd  297 

Hyde  r.  Toronto  Theatre .32S 

Hydecker  /•.  Williams 110 

lekes  V.  State 210 

Ide  r.  Brown 104,  175 

Iliodor  Picture  Corp.  v.  Mich- 

ailoff 431 

Illinois  Central  v.  Byrne.  . .  .  195 
Iiuperial     Curtain     Co.     r. 

Strauss 22!> 

Imperial  Film  lOxchange,  In  re  202 

Inchbald  r.  Robinson 253 

Indian  Rubber  Co.  r.  Ruljber 

Comb.  Co 450 

International  Cheese  Co.   r. 

Pluenix  Cheese  Co 450 

Interstate  Amusement  Co.  r. 

Albert.  17S,  191,   190,  2.50, 

2.5S,  201 
Interstate  Am,  Co.  v.  Martin 

322,  32S 
Investor    Pul)lisliing    Co.    of  /'.  Dobinson I  }.> 




lolanthe  Case 61 

Isaacs  r.  Daly 408,  447 

Ivan    Film    Productions    r. 
Bell 356,  377 

Jackel  V.  Nixon  &  Zimmer- 
man     259 

Jacko  V.  State 537 

Jackson,  Matter  of. .  : 489 

Jackson  v.  Baker 317 

Jackson  v.  Moore 44 

Jackson  v.  Walkie 511,  519 

Jacob  V.  Schiff 271 

Jacobson,  Ex  parte 392 

Jacobson  v.  De  Mille 573 

Jacoway  v.  Young 465 

Jaeger's  Co.  v.  Le  Boutillier .  .   473 
Janney  v.  Pan-Coast  Ventil- 
ator Mfg.  Co 413,  449 

Jaques  v.  Natl.  Exhibit  Co.. .  254 
Jeffries    v.    N.    Y.    Evening 

Journal 280,281,  284,287 

Jeffrys  v.  Boosey. .  .  492,  560,  662 

Jenkins  v.  Jackson 255 

Jerome  v.  Queens  City  Cycle  156 
Jeup  V.  State  Fire  Marshal .  .  369 
Jewelers'  Mercantile  Agency 

V.  Jewelers 496,  505,  506 

Jewel  Theatre  Co.  v.   AN'in- 

ship 362 

.Jewish  Col.  Ass'n  r.  Sf)lomon  468 
.loliiison  r.   Donaldson.  .560, 

57)},  574 
Jolinson    /'.    lluiui)lirey   Pop- 

("(.rn  Co 340 

Jdliiison  Co.  r.  IlunI  97 


Johnson  v.  Sparrow 298 

Johnson  v.  Wilcox 310 

Johnson  v.  Wilkinson 292 

Johnston    Harvester    Co.    v. 

Meinhardt 202 

Johnston  v.  Orr-Ewing 461 

Jolhe  V.  Jaques 403 

Jones  V.  American  Law  Book 

Co 62 

Jones  V.  Sandford 250 

Jones  V.  Van  Zandt 593 

Joseph  V.  Bidwell 298 

Joseph  V.  Elliott 396 

Journal  Pub.  Co.  v.  Drake.  .   637 

Joyner  v.  Moore 298 

Julian  V.  Hoosier  Drill  Co. . .  .  450 
Jung  Brewing  Co.  v.   Com- 
monwealth    255 

Jurgens  r.  Woodberry 466 

Kaiser  v.  (Jinberg 245 

Kaiser  Wilhelm  Second 529 

Kalem    v.    Harper.. 2,    338, 

418,  431,  587,  610 
Kalisthenic  Ex.  Co.  v.  Em- 
mons  379,  389,  390 

Karnor.PatheFreres. .  .537,  589 
Karst  r.  Prang  Educational 

Co 86 

Kathreiner  v.  Pastor-Kneipp  456 
Kay-Tec  Film  Exchange,  In 

re 227,  263 

Kcanc  r.  Wheeler 144 

Kecne  v.  Wheatley 582 

Keener  v.  Moslamlcr  21 1 

Keith?'.  Kellrrman.    101,  16S,  1>S7 



'Keith  &  Proctor  r.  Bingham 

393,  400 

Kolly  V.  Hylcs 44.S 

•Kelly  /'.  Cakhvoll 123,  140 

Kelly  r.  London  Pavilion.  .  .     l.'iO 

Keiulull  /'.  West 113,  208 

Kennedy  r.  J'rcss  Pul).  Co..  .     65 

Kennedy  r.  Holfe SI 

Kenyon  r.  \Vei.><sherg.  ...Ill,  1  Hi 
Kerker  r.  Lederer.  .78,  86,  93,  110 

Ke.s.sler  r.  ( 'liappellc 97 

Kcssier  v.  Dcutsch 301,  327 

Ketelhey  r.  Ma^Kett 88 

Keye.s  r.  Allerdyee 181 

Keyzor  r.  Newman 209 

Kidd  v.  Johnson.  .  .  ^  .  .  .465,  479 
Kicrnan  r.  Man.  Tel.  Co.  . .  .   505 

Kiiifjj  r.  liroadhurst 179 

King  r.  McAulilTe 357,  379 

King  r.   Hinnling 312 

King  V.  Will  J.  IMoch  Amuse- 
ment Co 132,  195 

King  /•.  Woodfall 283 

Kingman  r.  Brockton 249 

Kipling  r.  Fenno 55 

Kipling  r.  Putnam.  .455,4S6J 

54-i,  04S 

Kiralfy  ;-.  Maeauley 151 

Kirelmer  r.  Cruhan 100 

Klaw   V.    CJeneral    Film   Co. 
416.    419,    420,   421,   424, 

429,  433,  444,  454 
Klaw     /'.    Xew    York    Press 

Co    265 

Klein  /'.  Heaeh.  .2,7,8,39,42,43 
Kliger  r.  Kosenfeld 621 


Klinger  r.  Pyaii 3()0,  394 

Knottnerus r.  North  Park.  .  .  .'^.32 

Koelhle  r.  Woods 259,  401 

Kohn,  Matter  of  (Wagener, 

Sissoii) 365 

Koppel  V.  Downing 497 

Kramer  r.  Wein 114 

Kreider  c.  State 398 

Krier  r.  Mayor 371 

Krics  V.  Dick 3.50 

Kunz  V.  Bos.selman 270,  277 

Kurlan  v.  Gutman 99 

Kurtzmann  v.  Kurtzmann. .  481 
Kyle  r.  .lelTerys 552 

La  Crandall  r.  Ledbitter  130,  392 
La  Ilepublifiuc  Franc,aise  v. 

Saratoga  Spring  Co 463 

La  Soeieta  r.  San  Francisco.  .   249 

Lacy  r.  Houck 99 

I^cy  r.  Osbaldiston. . .  .124,  162 

Lacy  r.  Toole 22,  71,  557 

Ladd  r.  Oxnartl.  .  .505,  607,  618 

Laird  r.  Pittsburg 249 

Lalanee    (t    Grosjean    Mfg. 
Co.  ('.  Nat'l  Enameling  it 

Stamping  Co 39,  42,  43 

Lamb  r.  Grand  Kapids  Fur- 
niture    541 

Landa  r.  Greenburg 61 

Landeker  v.  WoHT..71,  552,  5.")7 

Landrcth  r.  Landreth 477 

Larrowo-Loisett«  r.  O'Laugh- 

lin .505 

Livsky  r.  Celel)rated  Players 
Film  Co 223,228 




Laskyz).  Fox 201 

Lasky  Feature  Co.  v.  Suratt  175 

Latham  v.  Roach 306 

Latour  y.  Bland 492 

Laurelle  v.  Bush 345 

Lauri  v.  Renad 44 

Lavin  v.  Birch 592 

Lawrence  v.  Aflalo 27 

Lawrence  v.  Bushnell 544 

Lawrence  v.  Dana.  .27,  511, 

550,  609 

Lawrence  v.  Dance 534 

Lawrence  v.  Dixey.  .96,  101,  103 
LawTence  Mfg.  v.  Tennessee 

Mfg 461 

Leather   Cloth   Co.   v.   Am. 

Leather  CI.  Co 479 

Leavitt  v.  Kennicott 124 

Leavitt  v.  Windsor  Land  & 

Investment  Co 188,  245 

Lc  Page  Co.  v.  Russian  Ce- 
ment Co 453,  466,  469 

Lederer  v.  Ferris 586 

Lederer  v.  Rankin 586 

Lederer  v.  Saake 593,  598  • 

Lee  V.  Gibbings 55 

Lee  V.  State 345 

Lecson  v.  General  Council .  .  .   360 

Lempke  v.  State 398 

Lennox  v.  Curzon 240 

Lconrini  v.  Post 499 

Lcrncr  v.  Tctrazzini 103 

lAisVuiv.  Robic 121 

Lester  v.  Palmer (530 

Ixjthridge  v.  Wilson 351,  352 

Levin  v.  (joodwin 255 


Levinsky  v.  Cooper 324 

Levis  V.  Hitchkock 280 

Levison  v.  Oes.  .79,  150,  190,  220 

Le\'y  V.  Rutley 36,  37 

Levy  y.  Yates 192,  344 

Lewis  V.  Arnold.  .  .293,  328,  330 
Leyland  v.  Stewart ........   552 

Lichtenstein  v.  Fisher 143 

Liddell  V.  Copp-Clark  Co.  . .  599 
Liedertafel  Case,  Jude's.  . . .  580 
Liedertafel  Series,  Re  The.  .  .  557 
Life  Photo  Film  v.  Bell.  .357,  375 
Liggett  &  Myers  Tobacco  v. 

Finzer 461 

Lillard  v.  Sun  Printing  Co.  .  .   637 

LindenmuUer  v.  People 127 

Lingenfelter,  Ex  parte 397 

Linthicum  v.  Truitt 323 

Linton  r.  U.  F.  Co 163 

Lipshutz  V.  Proctor 116 

Liquor  Tax  Cases 346 

Little  V.  City  of  Madison 317 

Littler.  Gould 27,  550,  582 

Littlefield  r.  Perry 582 

Livingston,  In  re 175 

Livingston  v.  Klaw 145 

Loftus  V.  Roberts 117 

London  r.  Biograph 573 

London     &     Provincial     El. 

Theatres,  Ltd.,  ex  parte.  . .  351 
London    Assurance    Co.     /'. 

Dreuiien 47 

London  Co.  Council  v.  Ber- 

mondsoy  liioscopc  Co 361 

London  Music  Hall  r.  Austin 

96,  118,  124 




London  Music  Hall  p.  Poluski 

107,  108 
I^)ncion  Theatre  of  Varieties 

r.  Kvans 6,  107 

London   rnivcrsity   Press   r. 

University  Tutorial   Press    29 

Ix)ng  r.  Bowrinp 102 

T^orenz  v.  liartuschek.  .  .  142,  191 

Lorettc  v.  Collins 177 

I^jrillard  r.  Clyde 70 

Lover  r.  Davidson 534 

Levering  r.  Miller 120,  123 

Lowell  r.  Spaulding 303 

I^owenfeld  v.  Curtis 60 

Lubin  r.  Swaab. . .  .224,  235,  236 

Lucas  V.  Cooke 71,  557 

Lucas  V.  Moncrieff 69 

Ludwigh  V.  Payson 460,  5S5 

Lumley  r.  Gye 202 

Lumiansky  r.  Tessier 241 

Lumley  r.  Wagner 96,  99 

Lumsden  v.  Thompson  Scenic 

Ry 323 

Luskr.  Peck 300,  302,  312 

Luxemburg  v.  Keith 292 

Lyons,  Sons  &  Co.  v.  Gulliver  252 

Lyric  Theatre  v.  State 399 

Lytton  V.  Devey 493 

McAllister  v.  Simon 336 

McHride  &  Co.,  In  re  D.  IL  645 

McCain  r.  Majestic  Bldg.  .  .  333 

McCauU  r.  Hrahum 96 

McCrea  r.  Marsh 292 

McCullough  r.  Pence 86 

McDerraott  v.  Bd.  of  Trade . .  505 

McDonald  v  Hearst.197,  637,  591 

McDonnell,  In  re   644 

McGee  v.  Kennedy 302 

McGiffen  r.  Baird 592 

MacGowan  v.  Duff 32.S 

MacGregar  r.  Gilmore 122 

Mclndoo  r.  Musson  Book  Co. 

412,  448,  585 

Mcintosh  r.  Miner 123 

McKeage    v.    Hanover   Fire 

Ins.  Co 233 

McKenzie  r.  McCIellan.  .350,  351 
McLaughlin  r.  Hammerslein 

119,  158,  160 
McLaughlin  v.  Raphael  .  521 
McLean    v.    Fleming..  .405, 

423,  430,  452,  456 
McLelliHi  r.  Goodwin.  . . .  168,  188 

McLeod  V.  State  398 

Macleod  r.  Wakely .  .  65 

Macmillan  Co.  r.  Dent..  .493,  579 

McMillan  r.  King 608 

McNeill?'.  Williams 603 

McQuirc  v.  Western  News   .    203 

McVittie  v.  Turner 368 

Macalay  r.  Pre.'^s  Pub..  Co. 

158,  163 

Mack  V.  Petter 445 

Mackay  v.  Mackay 551 

Mackaye  v.  Mallory 168 

MacKenzie  v.  Soden  Mineral 

Springs 270,  273 

Macklin  r.  Richardson .  .  .  .  497 
Mahonoy  City  r.  Hersker.  . .  347 
Mail  &  Express  r.  Life  Pub. 

Co 17,  545,  627 




Maitland  v.  Company 592 

Majestic  Theatre  v.  City  of 

Cedar  Rapids 399 

INIallory  v.  Mackaye.  .32,46, 

51,  62,  67,  16S,  187 
Manchester  Palace  v.  Man- 
chester Corporation 360 

Manger  Bros.  v.  Shipman.  .  313 

Mann  v.  Maurel 76 

Manners  v.  Triangle.  .  .  .427,  444 
Mansell   v.    Valley   Printing 

Co 275,  492 

Manufacturing  Co.  v.  Wilson  461 
Maple-son  v.  Bentham .  96,  107, 124 
Mapleson  v.  Del  Puente. .  102,  109 

Mapleson  v.  La  Blache 101 

Mapleson  v.  Sears 124 

Maratta  v.  Heer  Dry  Goods 

Co 164 

Marble  v.  Ross 314 

Marconi  Wireless  v.  Simon. .   109 

"Mark  Twain  "Case 212 

Markham  v.  Southern  Con- 
servatory of  Music 343 

Marks    v.    Benjamin. .  .341, 

343,  344,  348 

Marks  I'.  Jaffa 270 

Marks       Realty       Co.       v. 

"Churchills" 232 

Marks  Realty  Co.   v.  Hotel 

Ilorrnitagc 232 

Marks  Realty  Co.  v.  Rectors .   232 

Mannct  v.  State 345 

MuKiuet  V  La  Duke 317 

Murrotio       v.       Washington 
Jockey  Clul) 292,  294 

Marsh  v.  Conquest.  .550,  587,  588 

Marshall  v.  Bull 554 

Marshal  v.  Broadhurst 70 

Marston  v.  Swett 592 

Martin  v.  Hunt 70 

Martinetti  v.  Maguire 535 

Marvin  v.  Brooks 87 

Marx  V.  Miller 140 

Marx  V.  Ontario  H.  &  A.  Co.  324 

Mary  v.  Hubert 670 

Masson's  Appeal 610 

Mastad  v.  Swedish  Brethren 

327,  332 

Matsell  V.  Flanagan 443 

Mathers  v.  Green 38 

Matter  of  Allen 341 

Matter     of     Armstrong     v. 

Murphy 350,  358 

Matter  of  City  of  New  York 

(Re  Hammcrstein) 338 

Matter  of    Ormsby  v.    Bell 

354, 357 
Matter  of  Simons  v.  McGuire  350 

Mattice  v.  Wilcox 65 

Maurel  v.  Smith 36,  52 

Mawman  v.  Tegg 621 

Mawson  v.  Leavitt 152 

Maxwell    v.    Goodwin.  .560, 

564,  591,  626,  627 
Maxwell  Steel  Vault  Co.  r. 

Nat' I  Casket  Co 599 

May  V.  Burdett 317 

May  V.  Chaffee 41 

Mayer  v.  Nethorsolo 169,  187 

Mayor  of  N.  V.  City  r.  ICdcn 

Mu.see 339,  341 



Meachcm  r.  Jamestown  K.  I{. 

Co U.i,  I'll 

Mecaho  v.  Jones 20!) 

Meccano  i'.  VVaRner 541 

Meeker  v.  Smith 325 

Mehlos  r.  City  of  Milwaukee.  340 

Meibus  r.  Dodf^e 31G 

Meisner  v.  Detroit 202 

Melsheimcr  r.  Sullivan 310 

Menclicii  ;•.  l)('iivill(> 581 

Menendoz  r.  Holt .  .450,  452,  450 

Merivale  v.  Carson. .  . 204 

Merle  V.  Soc.  Research*  .200, 

272,  280,  282 

MerivU  r.  Tice 593,  598 

Merriam  Co.  v.  Famous  S.  & 

C.  Co 438,  439 

Merriam    Co.    r.    Halloway 

Pul).  Co ".  438 

Merriam  Co.  v.  Ogilvie.  .438, 

439,  442 

Merriam  Co.  r.  Strauss 438 

Merriam  Co.  /•.  Saulficl(1.430,  438 
Merriam  Co.  r.  Texas  Siftings 

Co 438 

Merriam  Co.  r.  United  Dic- 
tionary Co 517,  593 

Message    Photoplay    Co.    r. 

Bell 354 

Messenger  r.  Press  Publ.  Co. .  281 

Messenger  r.  State 280 

Messer  r.  Fadettes 400,  478 

Metropolis    Theatre    Co.    r. 

City  of  Chicago 352,  359 

Metropolitan   Opera   Co,    r. 

llammerstein 210,  201,  489 


Mctroptjlitan  Ex,  Co.  r.  Ward  100 
Metts  p.  Charleston  Theatre  3^11 

Mctzlcr  r.  Wood 440 

Meyer  v.  CJrand  llapids  Chair 

Co 311 

Meyer  r.  Rcdmund 197 

Meyers  r.  Walton 179 

Michelstree  r.  Stair 310 

Mifflin     V.     Dutton.  .13,  18, 

511,  540,  5.^)0 
Mitiliiir.  White.  13,  18,511, 

540,  550 
Miles  Medical  Co.  v.  Park  & 

Sons 202 

Millar  r.  Taylor 490,  018 

Miller  v.  Lawrupcc •143,  248 

Millington  v.  Fo.x 401 

Mills  r.  Standard  Music  Roll 

Co 545,  019 

Mines  v.  Scrilmer 490 

Ming  n.  Pratt 150 

Miracle  Co.  v.  Danziger.  .413, 

443,  4.54 

Mirsky  /•.  .\dler 333 

Mitchell  r.  Hawley 481 

Molloy  V.  Starin 315 

Monaiian  v.  Taylor 587,  588 

Montague  r.  Flockton.  .  .  123,  143 

M(jntgomery  r.  Ladjing 330 

Montgomery       r.       Water- 
bury 592 

Moore  V.  Coyne 80 

Moore  r.  Edwards 21 

Moore  r.  Owen 398 

Moore  r.  Rugg 590 

Morang  r.  Lo  Sueur.  .58,  89,  207 



Morang  v.   Publishers'  Sj'^n- 

dicate 671 

Morasse  v.  Brochu 283 

Morgan  v.  Roberts 50 

Morgan  v.  Rogers 466 

Morgan  v.  Walton 455 

Morgan  Envelope  Co.  v.  Al- 
bany Paper  Co 587 

Morosco  V.  Fendall 574 

Morris  v.  Briggs 144 

Morris  v.  Colman 72,  96 

Morris  v.  Kelly 497 

Morrison  v.  Belcher 63,  203 

Morrison  v.  Hurtig  &  Seaman 

136, 162 

Morrison  r.'Pettibone 623 

Morrison  v.  vSmith 283 

Moshier  v.  Kitchell 50 

Moss  V.  Donahue 529 

Moss  Motion  Picture  Corp.  v. 
Ivan     Film     Prod.,     Inc. 

426,  447  V.  Tompkins 150,  247 

Motion  Picture  Patents  Co.  v. 

Universal  Film 485 

Motorboat  Pub.  Co.  v.  Motor 

Boating  Co 440 

Mott  Iron  Works  ?'.  Clow.  .  .   541 
Moul  V.  The  Coronet  Theatre, 

Ltd 588 

Mu(,  Ex  parte..  .392,  397 

Mulicr  V.  M(;Kess()n 315 

Mullor  V.  Rittersville  Hotel.  .   235 

Mundcn  v.  Karris 273,  278 

Munro  v.  Tousey.  .405,  406, 

433,  4  17 

Murray  v.  Gast  Lithographic 

Co 269,  270 

Murray  v.  Walter 203 

Murrellz;.  Smith 318 

Muser  v.  Robertson 599 

Mutual  Film  Corp.  v.  City  of 

Chicago 387 

Mutual  Film  Corp.  v.  Hodges  387 
Mutual  Film  Corp.  v.  Indus- 
trial Commission  Ohio.  288,  384 
Myers  v.  Callaghan 519 

Nahser  v.   City  of  Chicago 

255,  365,  371 

Nash  2).  Krieling 141,  213 

National  Car  Brake  Co.  v. 

Terre  Haute  Co 457 

Nat'l  Cloak  &  Suit  v.  Kauf- 
man  , 532,  541 

Nat'l  Cloak  &  Suit  Co.  v. 
Standard  Mail  Order  Co. . .   541 

Naulty  V.  Bulletin  Co 64 

Ncet,  E.\  parte 397 

Neher  v.  Viviani 242 

Neilson  v.  Horniman 578 

Nelson  v.  A.  H.  Woods  Prod. 

Co 127 

Nelson  Theatre  Co.  v.  Nelson 

242,  247 

Neplilor  V.  Woodward 309 

Nethensole  v.  Bell 567 

Neucndorff  v.  Duryea 395 

Neufeld  v.  Chapman 82 

New  Castle  v.  Cicnkinger.  . . .   381 
New  Fiction  Co.  r.  Star  Co. 
26,  5:51,  545,  553,  577,  578,  580 



New  Theatre  r.  Ilartlove.  .  .  30S 
New  Tivoli  v.  Happy  Fanny 

Fields lOG 

New  York  v.  Eden  Musec. . .  398 

New  York  City  r.  Pine 610 

New  York  r.  Williams '.VM't 

New  York,  Matter  of 396 

New  York  Academy  of  Music 

r.  Hackett 79,  150,  242, 

New  York  Bank  Note  Co.  r. 

Hamilton    Engraving    Co. 

624,  625 
New  York  Herald  r.  Ottawa  475 
New   York    Herald    r.    Star 

Co 475 

New  York  Life  Ins.  Co.  r. 

Allison 233,  234 

N.  Y.  Motion  Picture  Co.  v. 

Universal  Film 489 

N.    Y.    Phonograph    Co.    v. 

Davega 67 

N.  Y.  Star  Co.  v.  Sun  Print- 
ing ife  Pub.  Ass'n 598 

N.  Y.  Times  v.  Star  Co.  .502, 

597,  598 

Newcomer  r.  Blaney 120 

Newhall  r.  .\ppleton 125 

Newman  r.  (latti 105,  141 

Newman  v.  Zachary 202 

Nichols      r.      Amalgamated 

Press 82 

Nill.son  V.  De  Haven 82,  592 

Nillson  r.  Lawrence.  .37,  39, 

42,  44 

Ni.sbet  V.  Golf  Agency 32 

Nixon  V.  Doran.  .93, 569, 570, 603 

Nixr)n  &  Zimmerman  v.  Ijco. 

LiLsh  Co ZU) 

N.  K.  Fairbank-s  Co.  r.  Wind- 
sor  4.'i5,  4.')6 

Noack  r.  Wo.'^slick 299 

Noebius  r.  De  Jong  &  Co.  . .  .  453 

Norton  v.  Hudner 311 

Nottage  r.  JacLson 596 

Oakes  v.  Tonsmierre 480 

Oakland  r.  Bingham.  . .  .301,  327 

O'Brien  r.  Jones 592 

O'Callaghan     r.     Dellwood 

Park  Co 323 

O'Connor  r.  Amicmr  Packing 

Co 139 

Oellers  v.  Horn 343 

Oertel  r.  Jacoby 506 

Oertel  r.  Wood 492 

Ogilvie  V.  Merriam  Co. .  .438,  442 
Old  Colony  Trust  Co.  r.  Du- 
buque Co 608 

Oldknow  r.  City  of  Atlanta .  .  367 

Oliver  r.  Lansing 232,  235 

Oliver  r.  Rumford 67,  646 

Oliver  r.  State 397 

OUendorf  r.  Black 662 

Olympic  A.  C.  v.  Bingham ...   400 
Oneida  Community  v.  Oneida 

455,  459 
O'Neill  V.  General  Film  Co. 
2.'),  492,  493,  498,  573,  574, 

Oriental  Society,  In  re 262 

O'Rourke,  Matter  of 371 

Orr  V.  John.son 457 

Orton  V.  Brown 359 




Osborne  v.  Schenck 40,  41 

Osgood  V.  Allen.  . .  .403,  446,  455 
Osgood  V.   Aloe  Instrument 

Co 513,  593,  595 

Outcault  V.  Bonheur 91,  592 

Outcault  V.  Lamar.  .405,417, 

443,  474 

Owen  V.  Partridge 279 

Owens    V.    Assoc.    Realties 

301,  308 
Oxford  ^'.  Leathe 334 

Pagano  v.  Beseler 539 

Paige  V.  Banks 548,  618 

Palace  Theatre  v.  Clency.  .99, 104 

Palestine  v.  Minor 255 

Palmer  v.  De  Witt.  .21,  492, 

493, 494, 496. 497,  504,  583,  580 
Palmer    v.    Nat'l     Sporting 

Club 270 

Palmer  v.  Snow 391 

Pankhurst  v.  Kinsman 47 

Pappas  V.  Miles 151 

Paris  V.  Commonwealth ....   255 

Park  V.  Morgan 359 

Park  &  Pollard  Co.  v.  Kellcr- 

strass 620 

Parker  v.  Cushman 315 

Parker  v.   Hyde  &  Behman 

Amuse.  Co 113 

Parkinson  v.  Lasellc 511 

Parry  ».  American  Opera  Co.  145 

Parsons  r.  Manser 315 

Partlow  V.  Ilaggerty 314 

I'arton  v.  Prang.  .  .492,  506, 

554,  .59() 


Pastor  V.  Solomon 167 

Patrick  v.  Wood 345 

Patterson    v.    Ogilvie    Publ. 
Co.. 523,    554,    594,    618, 

619,  638,  644,  645 
Pattison  v.  Hammerstein ....  335 
Pattison  v.   Li\nngston  Am. 

Co 308 

Paulton  V.  Keith 197,  345 

Pavesich    v.    New    England 

273,  283 

Pearce  v.  Spaulding 292 

Pearson,  Ltd.,  v.  J.  P.  O'Con- 
nor    448 

Peck  V.  Tribune  Co 269,  283 

Peerless    Feature    v.    Fields 

98,  110 

Penrose  v.  Nixon 254 

People  ex  rel.  Edison  v.  As- 
sessors    648 

People  ex  rel.  Rota  v.  Baker 

354,  375 
People   ex   rel.    Bonfiglio   v. 

Bingham 350 

People   ex   rel.    Park   Circle 
Am.  Co.  V.  Board  of  Police  350 

People  V.  Brown 393 

People  V.  Busse 371 

People  V.  Campbell 341^  342 

People  V.  Coleman 359 

People  ex  rel.  Lodes  v.  Dept. 

of  Health 354 

People  V.  Dixf)n 399 

People  V.  Doris 357,  373 

People  r.  Dunford 395 

P(!()ple  V.  lOwcr 176 




IVcplor.  Finn 393,  31)5 

IVopIc    ox    rcl.    .Jacques    r. 

Flalierty 370 

IVople   ex    nl.    liurnliani    r. 

Flynn 2<)1,  2% 

I'eople  ex  rel.  Valensi  v.  Flynn  393 
People  ex  rel.  Moses  r.  Clay- 

nor -.308,  301 

People    ex    rel.    Schwab    v. 

C;rant 3.'>0,3.")4 

l'eoi)le  V.  Ilammcrstein 398 

People  r.  Hart 294 

People  r.  Ilaym 398 

People  r.  I  lemleb 393,  394 

I'tMtplo  V.  Jensen 370 

Pcoplo    ex    rel.    Bender    v. 

.Joyce 394 

People  r.  Keller 341,  348 

I'coplc  V.  Kennedy 340 

Pcoi)Uw.  Kins 292,  298,  341 

People  r.  Kingston 400 

Peoi)lc  r.  Klaw 489 

Peojile  ex  rel.  United  States 

Aluminum  Co.  r.  Knight.  .   G18 
People  ex  rel.  Kicley  r.  Lent 

3.">!),  300,  307,  39.5 
People    ex    rel.     \'alensi    v. 

Lynch 393 

People  V.  Marks 382 

People  V.  Martin 341,  348 

People   ex   rel.    McXulty   r. 

Maxwell 3.-)0 

P(M)pl(>  (>x  rel.  Armstrong  v. 

Murphy 37.") 

People  ex  rel.  Keller  /'.  Oak 

Park 303 

People  t.  O'Gorman  .396 

Pf'ople     ex     rel      l^mge     p. 

Palmitter      36.'),  '.iXi 

I'eoplcex  rcl.  Klingerr.  Hand  .394 
People    ex    rel.    John.son    v 

Roberts 048 

People  r.  Royal      341,  .342 

People  V.  Samwick    370 

People    ex    rel.    Jacques    v. 

Sheriff 381 

People  r.  Steele 382 

People  V.  Stevens 1 76 

People  V.  Trippi 370 

People  r.  Wacke 34 1 

People  ex  rel.  Ritter  r.  Wal- 
lace     340 

People  ex  rel.  Schau  v.  Wil- 
liams    3.30 

People  ex  rel.   Cumiskey  v. 

Wurster 349,  .352,  3^ 

Pepl(;  V.  Corastock 68,  75 

Pepper  r.  Labrot 466 

Perley  v.  Shubert 258 

Perris  r.  llexamer 560 

Perry  v.  Bates 117 

Peters  v.  Borst.  .   27,  34,  36,  208 
Pettes  V.  American  Clock  Co.  463 

Pevely  r.  Poole 114,  208 

I'hila.  Ball   Club    v.    Lajoie 


Philii);'.  Pennell 493 

Philipp    Co.    r.    New    York 

Staats-Zeitvuig 260 

Pliillil)s  r.  Alhaitibra  Palace  101 

Phillips  r.  Inez 391 

Phillips  V.  Wisconsin  State.  .  325 



Phoenix  Ins.  Co.  v.  Continen- 
tal Ins.  Co 102 

Photo  Drama  Motion  Pict. 
Co.  V.  Social  Uphft  Film 
Corp.. 2,  5,  9,  11,  12,  48, 

110,  496,  553 
Pierce  v.  Werckmeister .  .505, 

511,  513,  593 

Pierpont  v.  Fowle 548 

Pieschel  v.  Miner 313 

Piexotto  V.  Board  of  Educa- 
tion   355 

Pike  V.  Nicholas 570 

Pitts  zj.  Hall 37,  46 

Placide  v.  Burton 166 

Planche  v.  Braham 562 

Planch6  v.  Colburn 77,  90 

Pointer  v.  Mountain  R.  C.  C.  323 

Polkr.  Daly 147 

Pollock  i».  Shubert 131 

Pollard  V.  Photographic  Co. 

272,  596 

Popplewell  V.  Pierce 314 

Porter  v.  Freudenberg 530 

Posen  V.  Schvvarz 425 

Posner  Co.  v.  Jackson 202 

Pott  V.  Altemus 604 

Potter   V.    McPherson.  .406, 

441,  506 

Potter  ?'.  Watt 366,380 

Pou.ssard  r.  Spiers 157 

Powell  I'.  Head 37,  39 

Powers  r.  O'Neill 336 

Pratt  V.  Montegriffo 105,  106 

Pratt  V.  Paris  (Jasliglit  <fc 
Coke  Co 630 

Press  Association  v.  Northern, 

etc.,  Agency 23 

Press  Publ.  Co.  v.  Falk 596 

Press  Publ.   Co.  v.  Monroe 

27,  493,  494,  498,  499,  556,  627 
Prince  Albert  v.  Strange.  .492, 506 

Probosco  V.  Bonj'on 466 

Pulte».  Derby 19,  632 

Purcell  V.  Daly 292 

Pusey  V.  Miller 38,  42,  43,  44 

Quaglieni  v.  Mathews.  .342, 

343,  649 

Quarg,  Ex  parte 381 

Quarles  v.  State 398 

Queen  v.   Commissioners  of 

Inland  Revenue 361 

Queen  v.  County  Council ....  360 
Queensberry  v.  Shebbeare. . .  492 
Quong  Wo,  Ex  parte 365 

Rafalo     V.     Edelstein.  .137, 

139,  141,  142,  162 
Raleigh    v.    Kinematograph 

Trading  Company 445 

Ramonas   v.    Grand    Rapids 

Ry.  Co 322,323 

Read  v.  Conquest 490,  560 

Reade  v.  Bentley.  .51,  67,  68,  646 

Reade  v.  Swectzer (55 

Record  &  Guide  Co.  v.  Brom- 
ley  515,518 

Rectanus  i)o.  v.  United  Drug 

Co 4()2 

Hc(lrii()iid     r.     Nat'l     Horse 
Show 300 




Reed  v.  Carusi 574,597 

Ilccd  v.  Ilolliduy 591.  COS 

Hoes  t\  IVltzcr 49(i,  ")().") 

Kecs  IK  Uoljhiiis 57;i 

Hooves    r.     Fourteenth     St. 

Theatre 'Ml 

RoR.  V.  lianics ;i9S 

Reg.  /'.  Stnigiiell 344,  MH 

Reg.  V.  Tucker 341 

l{eichart  /'.  Sapte 574 

Reid  r.  Wilson 349,  393,  4(X) 

Heinhanlt  r.  Sniitli 023 

Roiiard  v.  Carl  Opera 

Co 204 

R.     v.    Asliton,    Ex    parte 

Walker 349 

R.  r.  BaldoH 635 

Rex  V.  Carlile 254 

Rex  r.  Charron 393 

Rex  V.  Daoust 61 

Rex  r.  Paton 371 

Rex  V.  Hazza 365 

R.  v.  Hannay 349,  363,  369 

Rex  V.  Jone,s 292 

R.  V.  Loudon  County  Council 

358,  360 

Rex  V.  Moore 254 

Rex  V.  Ouimet 39S 

R.  V.  Rosenthal 34S 

R.  r.  Sheerness  County  Coun- 
cil    3(i() 

Rexr.  Willetts 635 

R.  r.  W^)Ifo 344 

R.  r.  Yorkshire  County  Coun- 
cil     o(i() 

]{ovincr\-  liros.  r.  Iluvler's.  .   461 

Rhodes  v.  Sperry  &  Hutchin- 
son     271 

Hicer.  Miner 176,  177 

Ricliards  r.  Wrijschner 529 

Richardson  v.  Bos.selman. .  .  .  623 
Hicliard.son  v.  I).  M.  Osborn 

&  Co 60S 

Richmond  R.  Co.  r.  Moore.  .   332 
Ricordi  v.  Haminerstein .  .  .  .    <305 

Ricorth  r.  Mason 562 

Hi(lg(>  r.  l]nglish  Illustrated 

Magazine 56 

Ridgway  Co.  v.  Amalgamated 

Press 409,448 

Riddle  r.  McFadden 278 

Higiioy  r.  Dutton 521 

Rignoy  r.  Rapliael 521 

Ritchie  v.  Sayres. 608 

Ritter  v.  Wallace 354,  355 

Roherson  v.  Rochester  Fold- 
ing Box  Co 2()S,  273, 

277,  280,  290 

Ro!)erts  v.  Myers 30,  581 

Robertson  v.  Berry  .  .61,  404,  441 

Rohorts  r.  Sheldon 4^8 

Rohey  r.  Arnold 145 

Robcy  r.  Stratton 145 

Robinson  r.  Davison. 156,  157,  161 
Robin.son  v.  Illustrated  lAm- 

don  News 552 

Robinson  r.  Textile  Publ.  Co.  278 
RobI  V.  Palace  Theatre. .  .571,  576 

Rock  r.  Lazarus .  .  .  , 5.32 

Hodgors  /•.  N.)\vill 469 

H.ulwcll  r.  Rotlgo 193 

Rogers  /'.  l-A'arts 202 




Rogers  v.  Rogers 313 

Rogers  v.  International  Silver 

Co 468 

Rolfs  V.  Pooley  Furn.  Co. .  . .   156 

Romeike  v.  Romeike 481 

Root  t'.  Railway 582,609 

Roquemore,  Ex  parte 397 

Rosbach  v.   Sackett  &  Wil- 

helms  Co 163 

Rose  Ball  v.  The  Tribune ....  283 
Rose  V.  McLean  Publishing 

Co 412,440 

Roseneau  v.  Empire  Circuit .    257 

Roserie  v.  Kiralfy 139 

Rosenwasser  v.   Amusement 

Enterprises 247 

Ross  V.  Raphael 521 

Roumfort  Co.  v.  Delaney ....  369 
Rosenberg  v.  Arrowsmith .  .  .   397 

Rothenberg  v.  Packard 144 

Routledge  v.  Low.  .661,  662,  665 
Roy  Watch  Co.  v.  Carman 

Roy  Watch  Co. . 459 

Royal  Albert  Hall  v.  London 

Council 344,347 

Royal  Aquarium  Soc.  v.  Park- 
inson    360 

Royal  Baking  Powder  v.  Ray- 
mond  450,453 

Royle  V.  Dillingham 56,  59 

Roys  V.  Johnson 193 

Rudge-Whitworth,    Ltd.,   v. 

Houck  Mfg.  Co 110 

Hugglfs?'.  Eddy 582 

I{upi)  &  Wittgenfcld  v.  ElUot 


Rushbrook  r.  Grimsby  Pal- 
ace Theatre 183 

Russell  V.  Briant 588 

Russell  V.  Notcutt 204 

Russell  V.  Smith 339,  340 

Russia  Cement  v.  LePage.  .  .  466 
Russo  V.  Orpheum    Theatre 


Saake  v.  Lederer.  .  .531,  583, 

593, 598 

Saltus  1'.  Bedford 592 

Salvation  Army  v.  Salvation 

Army 455 

Sampson     &     IVIurdock     v. 

Seaver-Radford  Co. .  .  1 1 1 , 

609,  620 

Sanborn  v.  Dakin 610 

Sands  v.  N.  Y.  Life  Ins.  Co..  528 

Sargent  v.  McLeod 48,  50 

Sarony  v.  Ehrich 637 

Sarpy  v.  Holland.  .  .348,  587,  649 
Savage  v.  Hoffman.  .  .20,  496,  536 

Savage  v.  Kerkcr 420 

Savage  r.  Nccly 85 

Savery  v.  Ingersoll 150,  151 

Sawyer  v.  Kellogg 452,  468 

Saxe  /'.  Shubert..  .......  114,  208 

Saxlchner  v.  Eisner. 449,  450, 

456,  468 
Saxlchner    v.    Siegel-Cooper 

Co 421,456 

Sayrc  v.  Moore 561 

Scarano  v.  Leinlcin 164 

Schimkcvitz  /'.  Hiiighani ....    400 
Schlcuter  v.  Billiagheimcr.  .  .  255 




Schmidt  Case 182 

Schnizer  v.  Philips 300,  312 

Schlesingcr  r.  Bedford 022 

Scldotz  r.  AnuLsis 500 

Schoclkopf,  Matter  of 237 

Scliofield  i\  Wood 304 

Schonberg  v.  Cheney 81 

Schreiber  i\  Sharpless.  .  .591,  637 

Schulz  V.  Raiines 530 

Schuinachor     r.     Schwciickc 

27.  32,  550,  590,  627 

Schuyler  v.  Curtis 270 

Schwab  V.  Anderson  Steam- 
boat Co 323 

Schwab  r.  Mullcr 126 

Schwartz  v.  India  Rubber.. .   180 

Schwarz  v.  WyUe 574 

Schweitzer  v.  Hamburg,  etc., 

Gescllschaft 182 

Scott  V.  McXaughton 193 

Scott  r.  University  of  Mich- 
igan   325 

Scribncr  v.  Allen  Co 532 

Scribncr  v.  Clark 532 

Scribner  v.  Kelly 310 

Scribncr  v.  Strauss 46,  486 

Scrivcn  v.  North 459 

Sea    Gull    Specialty    Co.    v. 

Humphrey 82 

Sebeck  v.  Plattdentsche  Volk- 

fest 332 

Security  Trust  Co.  v.  Temple 

Co 233.234,235 

Selchow  I'.  Baker 409 

Selig  Polyscope  Co.  r.  Mutual 
Film  Corporation 432,  444 

Selig  Polyscope  Co.  r.  Uni- 
corn   Film   Service   Corp. 
421,  422,  425,  441,  451,  454 
Selinas  v.  Vonnont  State. .  .  .   325 

Sclwyn  r.  Waller 189 

Serrena  r.  JefTerson.  .  19,  538,  572 

Sharplcss  v.  Lawrence 421 

Shaver  v.  Holler  &  Herz 403 

Shaw's  Jewelry  Shop  v.  X.  Y. 

Herald 253 

Shaw  V.  Collins 449 

Shaw  V.  McCreary 313 

Shechan  v.  Railroad  Co 38 

Sheets  r.  Sunbry 311 

Shelley  r.  Bethel.  .260,  344, 

347, 348 

Shelby  V.  Emerson 381 

Shephcard  v.  Whitaker 283 

Shepherd  v.  Bingham 400 

Shepherd  v.  Conquest 31 ,37 

Sherman  v.  Marinolli 538 

Sherwood  v.  Crane 117 

Shook  V.  Daly 492 

Shook  I'.  Rankin 25, 492 

Shook  V.  Woods 429, 459 

Shubert  v.  Angeles 1(X) 

Shubert  v.  Coyne 10."] 

Shubert  v.  Laughlin 245 

Shubert  v.  Nixon 292,  294 

Shubert  v.  Sondheim 243 

Shubert  v.  Woodward.  .  .111,246 

Shutt  V.  Lewis 343 

Sigmon  v.  Goldstone 164 

Silver  r.  Holt 632 

Singer  Mfg.  Co.  r.  June  Mfg. 
Co 439 




Singer  Mfg.  Co.  v.  Long 457 

Simmons  v.  Mansfield 461 

Sims  V.  Marryat 557 

Simms  v.  Stanton 571 

Simplex  Automobile  v.  Kahn- 

weiler 438 

Sizer  v.  Ray 592 

Skinner  v.  Oakes 479,  480 

Slingsby  v.  Bradford  Truck 

Co 615 

Sloan  V.  Williams 67 

Smiles  v.  Belford 671 

Smith  V.  Benick 332 

Smith  V.  City  of  Raton . . .  248, 350 

Smith  V.  Clinton 65 

Smith  V.  Cumberland  Soc. .  .   332 
Smith  V.  Daily  News,  Ltd. .  591 

Smith  V.  Dodd 647 

Smiths.  Dunn 47 

Smith   V.   Herring-Hall-Mar- 
vin Safe  Co 178 

Smith  V.  Robson 113 

Smiths.  Utley 209 

Smith  r.  Wilcox 127 

Snow  V.  Laird 637 

Snow  V.  Mast 516 

Snow  V.  McCracken 314 

Snowden  v.  Noah 446 

Soane  v.  Knight 64 

Social  Register  Ass'n  v.  How- 
ard   408 

Social    Register    Assoc'n    v. 

Murphy 446 

Society  V.  Ncusbach 341 

Sociological    Research    v. 

Waldo 350,372 


Solman  v.  Arcaro 103,  175 

Solomon  v.  United  States ...     27 

Sosman  v.  Coulon 233,  234 

Southern  v.  How 469 

Southern  Ry.  v.  Myers. . .  194,  195 

Southey  v.  Sherwood 492 

Spahn  V.  Winter  Garden 118 

Spain  V.  Manhattan  Street  Co.  113 
Spaulding  v.  Rosa.  .48,  156, 

157,  159,  161 

Speake  v.  Powell 263 

Speckman  v.  Kreig 315 

Spicer  v.  Waters 499 

Spiegel  V.  Zuckerman 411 

Spires  v.  Los  Angeles 249 

Spooner  v.  Daniels 64,209 

Spooner  v.  State 398 

vSpring  V.  Edgar 313 

Springer  v.  Falk 637 

Springfield  v.  Thame 23 

S.  F.  Co.  V.  Siegel-Cooper  ....  98 
St.  Cyr  V.  Sothern  &  Marlowe  81 
St.  James  Hall  Co.  v.  London 

County  Council ,.  244 

St.  Joseph  V.  Elliot 398 

St.  Louis  V.  Fischer 365 

Stair  V.  Kane 325 

Stamp  V.  86th  St.  Am.  Co. . . .  317 
Standard  Am.   Pub.   Co.   v. 

Methodist  Concern 68 

Standard     Fashion     Co.     v. 

Siegel-Cooper  Co 96 

Standard    Sanitary    Co.    v. 

United  States 489 

Standard   Scale   &   Foundry 

Co.  V.  McDonald 630 




Stnndine  r.  Brady 142,  162 

Standidpe  v.  Lyndc 102 

Star  Co.  V.  Press.  Pub.  Co.  .  .    103 
Star  Co.  r.   Wheeler  Syndi- 
cate    470 

Sttite  r.  Burnes 399 

State  V.  Chamberlain 393 

State  ex  rcl.  Ebert  v.  Loden 

350.  367 
State  V.  French  Opera  Ass'n  380 

State  V.  Herald 398 

State  V.  Lynch 248 

Stater.  Mason 210 

State  r.  Morris 340,  393 

Stater.  O'Hara 352,359 

State  V.  Penny 393,  39G 

Stater.  Prather 397 

State  V.  Roscnfield 346 

State  r.  Ryan 398 

State  r.  ScalTor 191,  345 

State  r.  Schonhauser,.  .  .352,  359 
State  V.  State  Journal  Co . . .  506 
State  Board  of  Agriculture  v. 

Meyers 144 

Stearns  r.  U.  S 637 

Steelier  v.  Dunston 505, 517 

Stein  V.  Bell 356,  375 

Stoppachor  v.  Karr 459 

Sterling  r.  Bock 133 

Stern  v.  Laemmle 6,  71,  72 

Stern  r.  Remick 504,  517 

Sternberg  r.  O'Brien 98 

Stevens  v.  Benning.  .51,  67, 

69,  CAi) 
Stevens  v.  Cady.  .496,  554, 

610,  645 

Stevens  r.  Chicago  Feature 

Co 114 

Stevens    v.     Gladding.  .534, 
554,  590,  610,  026,  636,  645 

Stevens  v.  McKibbin 47 

Stevens  v.  Morenous 396 

Stevens  r.  Wildy 45 

Stevens  r.  William 463 

Stevenson  v.  Fox.. 25,  569, 

573,  574,  620 

Stevenson  v.  Glasgow 303 

Stevenson  v.  Harris 573 

Stewart  v.  Cobalt  Curling. . .  303 
Stewart  v.  Reuters  Telegram    63 

Stewart  r.  Thayer 129,  398 

Stickel  r.  Riverview  Sharp- 
shooters  333,  334 

Stiff  r.  Cassell 72 

Stimpson  v.  Min.sker  Realty 

Co 250 

Stockdale  v.  Onwhyn 535 

Stokes  V.  Allen  &  White 446 

Stone  r.  Dugan 541 

Stone  r.  Long 88 

Stone  r.  Oconomowoc 250 

Storer  v.  Downey 365 

Stott  V.  Gamble 226,  351 

Stott,  Ex  parte 226 

Stover  V.  Lathrop 499 

Stowe  V.  Thomas 560,  564 

Strackosch     r.     Strackosch 

118,  156 

Strafford  r.  Stetson 123 

Straus  r.  Victor 48^^ 

Strauss  r.  Am.  Pub.  Ass'n. . .  489 
Strauss  v.  Francis 64 



Strauss  v.  Hammerstein . .  127, 231 

Strauss  v.  Notaseme  Co 452 

Strauss  v.  Pen  Printing  Co. 

514,  617 

Stringer  v.  Frohman 447 

Strobridge  Litho.  Co.  v.  Crane    97 

Stuart  V.  Smith 197,  590 

Sturgis  V.  Coleman 366 

Sturgis  V.  Grau 366 

Sturgis  V.  Hayman 365 

Sturtevant  Co.  v.  Fireproof 

Film  Co 196 

Suburban  Press  v.  Phila.  Co. 

61,  441 

Suesskind  v.  Bingham 400 

Sugar  V.  Monroe 250 

Sutherland  v.  Wyer 147,  148 

Swan  V.  Tappan 64 

Sweet  V.  Benning 28,  550 

Sweet  V.  Evans 28 

Swezey,  In  re 479 

Swords  V.  Edgar 302 

Syers  v.  Conquest.  .342,  348,  649 

Tabart  v.  Tepper 64 

Taft  V.  Smith,  Gray  &  Co. . .  499 

Taftv.  Stevens 521 

Tams  V.  Witmark.  .  .72,  583,  596 
Tacndsticksfabrik.s  A.  Vulcan 

V.  Meyers 455,  460 

Tannenbaum  v.  Rehm 369 

Tarling  v.  Fredericks.  .  .  .340,  346 

Ta.sker  v.  Shopliord 70 

Tate?'.  Full  brook 21,  537 

Taylor  r.  Caldwell 48,  241 

Taylor  z*.  Cohn 292 


Taylor,  v.  Oilman 591,  637 

Taylor  v.  Hearst 283 

Taylor  iJ.  Nast 443 

Taylor    v.   Sawyer    Spindle 

Co 608 

Taylor  v.  Waters 292 

Teichner  v.  Pope  Mfg.  Co. . .   114 
Terry  v.  Brighton  Aquarium 

341,  398 
Terry  v.  Moss's  Empires,  Ltd.  1 19 
Te.xas  State  v.  Britton. .  .306,  332 
Theatre  De  Luxe  v.  Gledhill 

351,  361,  371 

The  King  v.  Dimock 352 

The  Mikado  Case 52,  508 

The  Sarah 140 

Thedford    Medicine    Co.    v. 

Curry 469 

Thill  tJ.Hoyt 160 

Thomas  v.  Abrahamson 420 

Thomas  v.  Bayson 316 

Thomas  v.  Beaver  Dam  Mfg. 

Co 157 

Thomas  v.  Bradbury 63,  203 

Thomas  v.  Gatti 263 

Thomas  v.  Lennon 497 

Thomas  v.  Springer.  168,  187,  335 

Thomas  v.  Williams 298 

Thoinbleson  v.  Black 554 

Thomp.son  v.  Hubbard.  .511,  513 

Thompson  v.  Lowell 321,  332 

Thomp.son  v.  Shackcll 64 

Thompson  v.  Tillford 275 

Thorne  v.  French 77,  80 

Thornton  v.  Agricultural  So- 
ciety     332 




ThrinR  r.  Lucas 170, 220 

Tivoli,  Manchester,  v.  Colley     90 

Tiihacco  Co.  r.  Hynes 401 

Todd    Protectogniph   Co.   r. 

Hirscliberg 213 

Todd  r.  Koone 150,  1.5,3 

Toiisoii  r.  Collins 492 

Tonialin  r.  I'carson 180 

Tompkins    r.    Ilallock.  .493, 

494,  504,  580 

Town  of  Davis  v.  Davis 255 

Trade  .\uxiliary  Co.  r.  Mid- 
dlcsl)()rou«hT.  P.Ass'n...     37 

Trailing  r.  Messenger 348 

Tree  v.  Bowkett.  .30,  45,  71, 

224,  22S,  557  v.  "Sol"  Syndi- 
cate    502 

Triangle  Film  Corp.  r.  Art- 
craft  202 

Tribune   Co.    of   Chicago   r. 

A.ssociated  .23,  540,  010 
Triggs    r.    Sun    Printing    & 

Publishers'n 05 

Trow  Directory  r.  Boyd.  .  .  .   590 
Troy  City  Directory  v.  Cur- 
tin 593,  594,  030 

Trustees  r.  Lewis 249,  350 

Tuck  &,  Sons  r.  Priester 072 

Tully  r.  Triangle.. 531,  5S0,  005 
Turgeon  v.  Connecticut  Co. 

301,  300,  332 

Turner  v.  Robin.son 500 

Tuttle  r.  La  Dow 07 

Twiggar  r.  Ho.senberg 390 

Tyler  c.  Tyler 40 


United    Drug    Co.    r.    Rec- 

tanus  Co 453,  455 

United  (3il  Co.  r.  Grey ICA 

United  States  v.  Edgar 192 

United  States  v.  Gay 192 

United  States  r.  Greathouse  531 
United  States  r.  Motion  Pic- 
ture Patents  Co 201,  488 

United  States  r.  Taylor 280 

United  States  v.  Thompson . .    192 

United  States  v.  White 030 

United     Vaudeville    Co.    v. 

Zeller 390 

Universal  Film  Mfg.  Co.  v. 

Bell 355,  350,  373 

Universal  Film  Mfg.  Co.  v. 
Copperman .  .  485, 497, 507, 

555,  017,  022 
Universal  Talking  ^Lachine 

V.  English 97 

Unwin  r.  Clarke 20;i 

Vail  ('.  Jersey  Co 143 

\'alenti  v.  N.  Y.  Theatre  Co.  245 

\'alentine  r.  Richardt 010 

Valentine  Co.  v.  Sloan.  .  .308,  309 

Van  Antwerp  c.  Linton 30() 

Van  Cleef  v.  Chicago 319 

\'anderbilt  r.  Mitchell 273 

Van  Doren  r.  Baity 40 

\'an      Xordeii        v.      Server 

Com 355 

Vassar  College  r.  Loose  Wiles 

272,  278 

jVent  r.  Osgood 175 

Vernon  v.  Shubert 507,  572 




Vernon  Abstr.  Co.  v.  Wag- 
goner Title  Co 505 

Victoria  Pier  Syndicate  v. 
Reeve 367 

Village  of  Des  Plaines  v. 
Poyer 252,  254 

Violettet?.  Rice 140 

Virginia  Hot  Springs  v.  Hege- 
man 452 

Vitagraph  v.  Swaab 224,  236 

Vitascope  Co.  v.  U.  S.  Phono- 
graph Co 648 

Vogel  V.  St.  Louis  Museum 

196,  210 

Von  Thadorovich  v.  Franz 
Joseph  Beneficial  Ass'n.  .  .  273 

Vredenburg  v.  Behan 315 

Wade  V.  Hefner 162 

Wade  V.  Rob't  Arthur  Thea- 
tres Co 117,  144 

Wade  j;.  Waldon 204 

Wagner  v.  Conried 506 

Wagner  v.  Wilson 586 

Wagstaff  V.  Edison  Bell 253 

Wahle-Phillips  Co.  v.  Fitz- 
gerald    233 

Wahle-Pliillips  v.  Fifty- 
Ninth  St.  &  Madison  Ave. 

Co 234 

Waite  V.  Aborn 189 

Waite  !•.  O'Xcil 610 

Wakeman  v.  Wheeler.  .  .  .79,  150 

Waldo  t).  Seel ig 366,  380 

Wales?'.  Baily 125 

Walker,  In  re 363 


Walker  v.  Brewster 253 

Walker  v.  Crown 202 

Walker  v.  Fuhrman 358 

Walker  v.  Globe  Newspaper 

Co 496 

Walker  v.  Tribune 63,  64 

Wall  t;.  Bailey 120 

Wallt>.  Gordon 506 

Wall  V.  Taylor 348,  587 

Wallenstein  v.  Herbert 52 

Wallick  V.  Society 345 

Walsh  V.  Hyde  &  Behman.  .  .  331 
Walter  Baker  Co.  v.  Dela- 

penha 411 

Walter  v.  Emmott.  .404, 448,  455 

Walter  v.  Howe 28 

Walter  v.  Steinkopff 23 

Walton  V.  Godwin 160 

Walton  V.  Mather 118 

Wamser  v.  Browning-King.  .   336 
Wandt  V.  Hearst's  Chicago-  340 

American 283 

Ward  V.  Beeton 72 

Ward  Lock  &  Co.  v.  Long 

28,  33,  76 
Warheit  t'.  The  Day  Pub.  Co.    71 

Warne  v.  Routlcdge 7 

Warner  v.  Brighton  Aquarium  340 

Warner  v.  Roehr 469 

Warner  v.  The  Rector  and 

Trustees 139 

Wash.  Luna  Park  v.  Good- 

ricli 323 

Waterman  v.  McKenzie 582 

jWaterman  v.  Shipman.  .69, 

74,  406,  633,  646 




Waters  r.  Leech 369 

Watkins  v.  Thurraan 114 

Watson  V.  Cowdrey 499 

Watson  V.  Russell 122, 1G5 

Watts  V.  Fraser 209 

Watts  V.  Unione 528,  529 

Watts  V.  Van  Ness 391 

Waycross  v.  Sossman. . .  .234,  235 
Weatherby  &  Sons  v.  Intern'l 

Horse  Agency 591 

Weaver  v.  Klaw 115,  208 

Weber  r.  Freed 379,  389 

Weber  v.  Mapes 85 

Weber-Stair t>.  Fisher.  ..  .329,  331 
Webb  r.  New  Haven  Theatre  234 

Webb  V.  Powers 594,  621 

Webber  v.  Chicago 340 

Webster  v.  Daly 568 

Weil  V.  Xevin 209 

Weiner  v.  Scherer 305,  318 

Weiss  V.  Skinner 293,  329 

Weistblatt  v.  Bingham.  .337, 

339,  348,  392 

Welcome  v.  Thompson 409 

Weld  V.  Fruhling 529 

Weldon  v.  Dicks.  .  .403,  521,  532 

Wells  r.Haflf 157 

Wells  V.  Minn.  Baseball 299 

Wells  Am.  Co.  v.  Means 331 

Welty  V.  Jacobs 247 

Wendell  v.  Baxter 302 

Wendelb.  Conduit Mach. Co.  281 

Wentworth  v.  Riggs 336 

Wentworth  r.  Whitney 158 

Werckmeister  v.  Am.  Litlio- 

graphic   Co 486,  505,  513 

Werckmeister    r.    Springer 

Lith.  Co .532 

Werner  r.  Encyclopedia.  .  .  .    610 
West  Publ.  Co.  V.  Lawyers' 

Co-op .590 

West     Publishing     Co.     v. 

Thompson 496,  .>13,  609 

Westermann    v.    Despatch 

612,  638 

Westwater  v.  Rector 146 

Wheaton  v.  Peters.  .495, 496, 

506,  511 

Wheeler  v.  Cobbey 636,  638 

Wlieeler  r.  Wheeler 40 

Wheeler  v.  Woods 144 

Wheeler  Syndicate  v.  Star  Co.  474 

Whistler  v.  Ruskin 64 

White  V.  Constable  &  Co ... .     78 

White  V.  Geroch 493 

White  V.  Henderson 125 

White  V.  Osborn 40 

White  V.  Shapiro 541 

Whiter.  White 281 

White  Dental  Co.  r.  Sibley.  .  574 
White-Smith  v.  Apollo.  .  .550,  560 

White-Smith  v.  Goff 548 

Whittaker  v.  Howe 102 

Whitten,  ^L'\tterof .350,  368 

Whit  well,  E\  parte 252,  344 

Whit  wood  r.  Hardman 92,  99 

Wichita  Falls  Co.  r.  Adams 

333,  334 

Widmer  r.  Thompson 6,  74 

Wigan  r.  Strange 21 

•  Wilder  ;•.  Kent 554,  645 

Willard  i\  Tayloe 109 




Williams  v.  Butler 157 

Williams  v.  Davenport 203 

Williams  v.  Feldman 11 

Williams  v.  Mineral  C.  P.  A. 

312,  325 

Williams  v.  Moray 314 

Williams  v.  Wright 348,  391 

Willis  V.  Lowery 163 

Willis  t>.  Tibbals 73 

Winter  German  Opera,  Ltd., 

In  re 263 

Wirth  V.  Calhoun 129,  398 

Witkop    &    Holmes    Co.    v. 

Boyce 107 

Witmark  v.  Peters 103 

Witmark  v.  Standard  Music 

Roll  Co 545 

Wm.  Rogers  Co.  v.  Rogers. . .  98 
Wolf  Cigar  Stores  v.  Kramer  140 
Wolfe  0.  Howes..  48,  50,  133, 

156,  165 

Wood  V.  Butterworth 61 

Wood  V.  Cunard  Steamship 

Co 499 

Wood  V.  Leadbitter 292 

Wood  /'.  Miller 143 

Wood  V.  Saiidow 203 

Woodbridge  v.  Marks   314 

Woodman  v.  Lydiard-Peter- 

soii  Co         611 

WoodrutT  77.  Painter 336 

Woods  V.  Brodcr 251 

Woods  Prod.  Co.  t.  Chicago 

261,  396 

Woodside  v.  Tonopah Ill , 

Woolcolt  D.  Shubert 295 

Wooster  v.  Crane.. 67,  531, 

578,  582,  614,  618 
Worden  v.  New  Bedford ....  249 
World  Film  Corporation  v. 
Foy  and  N.  Y.  Motion  Pic- 
ture Corporation 110 

Worthen  v.  Love 316 

Worthington  v.  Batty 579 

Wright?;.  Eisle 505 

Wright  V.  McCampbell 50 

Wright  27.  Tullis 24,  616 

Wyatt  V.  Burnard 26 

Wyatt  V.  Hall's  Port  Studio. .   278 
Wyatt  V.  McCreery .  275,  278,  281 

Wyatt  V.  Phipps 125 

Wyatt    V.    Rosherville    Gar- 
dens   313 

Wyatt  V.  Wanamaker.  .278,  281 
W.  W.  V.  Co.  y.  Black 292 

Yale  &  Towne  Mfg.  Co.  v. 

Adler 475 

Yearaans  v.  Tannehill 76 

Yerrington  v.  Greene 50,  69 

Yorkvillo  v.  Bingham 361 

Young  V.  Am.  Opera  Co.  .  157, 159 

Younger  /-.  Judah 299,  328 

Yuengling  v.  Schile 526,  527 

Zamco  V.  Hammerstein 161 

Zenatello  v.  Hammerstein  128,  162 

Zcrralin  o.  Dltson 248 

Zicgfeld  V.  Norvvorth 97,  112 

Ziegfeld  Follies,  Inc.,  v  Gus 

Hill 445,  454 

Zuccaro,  Kx  parte 397,  398 




Rights  in  his  Literary  Works 

Sec.  1.  Where  the  motion  picture  is  basoiluponaclramaticcomposition. 

2.  Where  tlie  motion  picture  is  l)ased  upon  a  novel  or  liistorical 


3.  Where  the  motion  picture  is  based  upon  a  short  story,  sketch, 

poem,  lecture,  sermon  or  other  kindred  work. 

4.  Where  the  motion  i)icture  is  based  upon  an  original  scenario, 

that  is  one  not  based  upon  any  other  work. 

5.  Where  the  motion  i)icture  is  based  upon  a  news  item. 

6.  Where  the  motion  picture  Ls  based  upon  a  work  in  the  public 


7.  Wliere  the  motion  ])icture  is  produced  in  serial  form. 

8.  Where  the  relationship  is  that  of  employer  and  employe. 

9.  Where  the  motion  picture  material  has  been  N\Tittcn  by  more 

than  one  person. 

10.  Nature  of  the  contract  of  co-authorship. 

11.  Where  music  has  been  written  specially  to  accompany  the 

cxhil)ition  of  the  motion  i)icture. 

12.  Where  the  motion  picture  producer  has  not  followed  the  text 

of  the  work  upon  which  the  motion  picture  is  based. 
1.3.  Criticism  of  the  work. 

Section  1. — Where  the  motion  picture  is  based  upon  a 
dramatic  composition. 

We  shall  consider  first  the  various  rights  and  liabilities 
that  are  croatod  when  the  author  or  pro])riotor  of  a  })lay 
grants  producing  rights  with  respect  to  the  same. 



Where  the  author  or  proprietor  of  a  play  grants  to  a 
play  producer  the  exclusive  license  for  the  dramatic  pro- 
duction of  that  play  by  living  actors  upon  the  stage  he 
may  not  thereafter  grant  to  another  the  right  to  produce 
that  play  in  motion  picture  form.  This  seems  to  be  the 
accepted  rule  even  where,  at  the  time  of  the  granting  of 
the  play  rights,  neither  of  the  parties  contemplated  the 
production  of  the  play  by  means  of  motion  pictures.^ 

The  reason  for  this  rule  is  founded  on  the  principle  that 
the  prior  exclusive  grant  conveys  a  valuable  property 
right.  Inasmuch  as  a  motion  picture  reproduction  of 
such  play  is  a  dramatic  work,^  the  exhibition  of  such 
motion  picture  constitutes  an  invasion  of  the  exclusive 
dramatic  rights  originally  granted  to  the  producer  of  the 
play  upon  the  stage  with  living  actors.^ 

Were  this  not  so,  the  anomalous  situation  would  arise 

^Frohman  v.  Fitch  (1914),  164 
A.  D.  (N.  Y.)  231;  149  N.  Y. 
Supp.  633,  in  which  Clyde  Fitch 
granted  to  Frohman  in  1900  the 
exclusive  producing  rights  to 
"Captain  Jinks  of  the  Horse 
Marines."  Nothing  was  then 
contemplated  or  mentioned  by 
the  parties  as  to  motion  pictures. 
Thereafter,  on  the  death  of  Fitch, 
his  father  granted  to  the  American 
Play  Company,  the  motion  pic- 
ture rights.  It  was  held  that 
Frohman  was  entitled  to  an  in- 
junction restraining  the  moving 
picture  production.  See  also: 
Klein  V.  Bcnrh  (1910),  232  Fed. 

,(D.  C.)  240,  opinionby  Mayer,  J.; 
aff'd  239  Fed.  (C.  C.  A.)  108, 
opinion  by  Hand,  J.;  Harper  Bros. 
V.  Klaw  (1916),  232  Fed.  (D.  C.) 

^Knlcm  V.  Harper  (1911),  222 
U.  S.  55;  32  Sup.  Ct.  20. 

3  Frohman  v.  Fitch  (1914),  164 
A.  D.  (N.  Y.)  231;  149  N.  Y. 
Supp.  633;  Photo  Drama  Motion 
Pict.  Co.  V.  Social  Uplift  Film 
Corp.  (1915),  220  Fed.  (C.  C.  A.) 
448;  Klein  v.  Beach  (1916),  232 
Fed.  (D.  C.)  240;  aff'd  239  Fed. 
(C.  C.  A.)  108;  Harper  Bros.  v. 
Kkiw  (1916),  232  Fed.  (D.  C.) 



whoroin  the  author  could  grant  the  exclusive  dramatic 
riglits  to  j)roduce  the  play  upon  the  stage  and  simul- 
taneously with  its  production  on  the  stage,  could  grant  a 
license  to  reproduce  the  play  in  motion  pictures  to  third 
parties,  the  exhibition  of  which  would  seriously  interfere 
with,  or  even  destroy,  the  production  upon  the  stage  with 
living  actors. 

This  situation  was  imminent  in   the  recent   case  of 
Harper  Brolhers  &  ano.  v.  Marc  Klaw  &  ano^     In  that 

♦  Harper  Bros.  v.  Klaw  (1916), 
232  Fed.  (D.  C.)  G09,  Hough,  J.: 
"  If  by  the  jiRreement  of  1S99  the 
defeiuhint  had  been  granted  the 
exchisive  right  of  dramatizing 
'Ben  Hur'  or  producing  any  play 
or  plaj's  tiiat  might  be  made  out 
of  'lien  Ilur,'  there  would  be 
no  doubt  at  all  as  to  their  right  to 
make  a  '  mo\'ie  plaj' '  as  well  a.s  the 
kind  of  play  that  has  heretofore 
been  produced.  .  .  .  But  the 
grant  made  l)y  that  agreement 
wa.s  far  more  limited.  The  right 
conferred  wa.s  to  produce  one 
version  only,  and  that  in  a  par- 
ticular manner,  and  in  places 
limited  in  cities  of  a  certain  size. 
The  contract  prohibits  any  change 
in  the  manner  of  performance  or 
text,  and  contains  provisions  as 
to  royalties  and  their  computation 
confes.sedly  incapable  of  applica- 
tion to  any  method  of  producing 
photo-plays  in  commercial  use  or 

known  to  witnesses  or  coun.sel. 
It  is  unnecessary  to  expand  this 
thought,  the  whole  arrangement 
made  between  the  parties  in  1899 
is  not  only  inconsistent  with  but 
repugnant  to  the  thought  of  mak- 
ing 'movies'  out  of  'Ben  Hur.' 

"This  differentiates  the  at 
bar  from  Frohman  v.  Filch 
(1914),  IW  A.  D.  (X.  Y.)  231, 
with  which  I  fully  concur,  but 
these  defendants  never  got  so 
ample  a  grant  as  did  Mr.  Froh- 

"It  follows,  since  the  copyright 
covers  a  photo-plaj'  and  Klaw  &. 
Erlanger  got  no  to  make 
or  produce  one,  they  would  in- 
fringe if  their  threat  were  carried 
out — therefore  they  must  be  en- 

"Plaintiffs  assert  and  almost 
a.ssumo  that  since  defendants 
cannot  make  a  'moN-ie'  out  of 
'Ben  Hur'  and   such  right  must 


case  Klaw  &  Erlanger  had  acquired  from  Harper  Bros. 
the  exclusive  right  to  produce  a  dramatization  of  the 
novel  ''Ben  Hur."  Klaw  &  Erlanger  claimed  that  under 
the  contract  they  had  the  right  to  reproduce  the  drama- 
tization in  the  form  of  motion  pictures.  Harper  Brothers 
contended  that  they  had  granted  Klaw  &  Erlanger  a 
license  solely  to  produce  the  play  upon  the  stage  with 
exist  somewhere,  it  is  in  them, —      the  copyright    estate  to  the  delri- 

as  being  an  unconveycd  portion 
of  the  copjTight  estate  where- 
from  was  carved  defendants' 
limited  license. 

"In  strictness  of  law,  I  think 
this  is  true,  hut  it  does  not  always 
follow  that  because  one  oions  a 
certain  thing  he  may  xise  it  to  the 
detriment  of  another  especially  if 
the  owner  is  under  contractual 
obligations  to  such  other. 

"The  'movie'  rights  to  'Ben 
Hur'  undoubtedly  existed  in 
1899,  but  in  nubibus  or  (what  is 
frc(iucntly  the  same  thing)  in 
contemplation  of  law  only.  As  a 
matter  of  fact  they  are  an  accre- 
tion or  unearned  increment  con- 
ferred of  late  years  upon  the  copy- 
right owners  by  the  ingcMiuity  of 
many  inventors  and  mechani- 

"It  is  my  opinion  tlicrc  is  im- 
plied a  7icgalivc  corcnanl  on  the 
part  of  the  plninliffs  {the  grantors 
of  dcfendnnla'  restricted  license) 
not  to  use  the  ungrantcd  portion  of 

ment,  if  not  destruction  of  the 
licensee's  estate. 

"Admittedly  if  Harper  Bros, 
(or  Klaw  &  Erlanger  for  the  mat- 
ter of  that)  permitted  photo-plays 
of  Ben  Hur  to  infest  the  country, 
the  market  for  the  spoken  play 
would  be  greatly  impaired  if  not 

"This  being  the  fact,  the  law  is 
analogous  to  that  which  implies 
from  a  covenant  to  make  a  cer- 
tain use  of  property,  a  covenant 
negative  against  doing  anything 
else  with  it  (High  on  Injunction, 
4th  Ed.,  Section  1151a,  and  cases 

"The  result  is  that  plaintiffs 
may  take  the  injunction  jK-ayed 
for  against  the  defendants,  and 
the  defendants  may  have  the  same 
relief  against  plaintilTs.  The 
meaning  of  such  double  injunction 
is  that  as  long  as  the  contract  of  1899 
exists,  neither  parly  thereto  can 
produce  n  photo-play  of  Hen  Hur 
except  by  bargain  with  the  other." 


living  actors,  and  sought  to  restrain  tiicm.  The  latter 
countcrclaiiiu'd  that  even  assuming  they  had  nothing 
but  tlie  riglil  of  stage  i)ioducti()n,  nevertheless  they  were 
entitled  to  enjoin  the  plaintiff  from  making  a  motion  pic- 
ture version  of  the  i)lay  during  the  term  of  the  license. 

While  the  court  found  that  the  defendants  Klaw  & 
Erlanger  had  been  merely  granted  a  license  to  produce 
the  play  upon  the  stage  with  living  actors  and  restrained 
them  from  making  a  motion  picture  version  thereof,  yet 
it  granted  judgment  on  the  counterclaim,  enjoining  and 
restraining  the  plaintiffs,  Harper  Brothers,  from  making 
a  motion  picture  reproduction  of  the  play  during  the  hfe 
of  the  license. 

However,  the  original  grant  to  produce  the  play  upon 
the  stage  with  living  actors,  does  not  divest  the  author 
of  his  right  to  produce  the  play  in  motion  pictures.  His 
right  to  produce  the  play  in  motion  pictures  is  merely 
suspended  during  the  term  of  the  license  granted  by  him 
to  the  producer  of  the  play  upon  the  stage. 

^Mien  the  agreement  granting  the  exclusive  license  is 
silent  on  the  question  as  to  whether  the  play  is  to  be  pro 
duced  with  living  persons  upon  the  stage  or  fails  to  men- 
tion any  other  specific  method  of  production, — in  other 
words,  where  the  author  grants  "all  dramatization  rights," 
the  licensee  secures  not  only  the  exclusive  right  to  pro- 
duce the  play  upon  the  stage  with  living  actors,  but  he 
secures  as  well  the  exclusive  right  to  make  motion  picture 
reproductions  of  such  play.^ 

''Photo  Drama  Motion  Picture  448,  Lacoml)c,  J.:  "Oir"  Kauf- 
Co.  V.  Social  Uplift  Film  Corpora-  man  wrote  a  novel  entitled  '  Tlie 
tioti  (191')),  220  Fcil.  (C.  C.  A.)      House  of  Bondage'    He  assiRncd 


The  licensee  secures  the  sole  right  to  produce  or  repro- 
duce the  play  and  with  it  the  accompanying  right  to 
restrain  invasions  of  his  Ucense,^  only  when  his  grant  is 
exclusive.  Where  no  mention  is  made  in  the  agreement 
of  the  exclusiveness  of  the  grant,  the  court  will  assume 
that  the  grant  is  not  exclusive,  and  the  author  may  grant 
the  same  rights,  for  the  same  period,  to  third  parties/ 

question  of  fact  might  depend 
on  whether  the  performance  was 
substantially  one  appealing  to  the 

his  right  to  copyright  the  same 
to  MofTatt-Yard  &  Co.  Moffatt- 
Yard  &  Co.  duly  secured  copy- 
right. That  gave  them  exclusive 
rights  to  publish  and  sell  the 
novel;  also  to  make  dramatiza- 
tions of  it,  whether  in  the  usual 
form  for  acting  on  the  stage  of  a 
theatre  or  in  the  more  recent 
form  of  a  motion  picture  play. 
Moffatt-Yard  &  Co.  assigned  «/^ 
dramalization  rights  to  Kaufman. 
He  then  had  exclusive  right  to  make 
dramatizations  of  either  kind." 

See  generally  in  this  connection : 
London  Theatre  of  Varieties  v. 
Evans  (Eng.)  (1914),  30  T.  L.  R. 
258.  An  actor  agreed  that  he 
would  not  give  or  permit  the  giv- 
ing of  any  colorable  imitation, 
representation  or  version  of  his 
performance  within  a  specified 
area.  Held  that  it  was  a  cjuestion 
of  fact  wlu'thor  a  motion  picture 
reproduction  f)f  the  act  was  in 
fact  a  colorable  imitation,  repre- 
sentation or  version  of  the  same; 
that    the    determination    of    the 

eye  which  could  be  reproduced  or 
to  the  ear  which  could  not  be  re- 
produced. The  court  also  stated 
that  a  reproduction  of  an  operatic 
performance  would  not  as  a  rule 
be  a  representation  of  the  opera, 
the  singing  of  which  was  the 
primary  feature,  while  in  the 
case  of  a  music  hall  sketch  it 
could  be  such  a  representation  as 
to  amount  to  a  representation 

^Widmer  v.  Thompson  (1878), 
56  How.  Pr.  (N.  Y.)  91;  Barnett 
V.  Q.  &  C.  Co.  (1915),  226  Fed. 
(C.  C.  A.)  935;  Stern  v.  Lnemmk 
(1911),  74  Misc.  (N.  Y.)  262;  133 
N.  Y.  Supp.  1082. 

'  Hart  V.  Cort  (1913),  144  N.  Y. 
Supp.  627;  83  Misc.  (N.  Y.)  44: 
A  contract  was  made  granting  a 
license  to  the  defendant  to  jkm'- 
form  "LaTosca."  The  contract 
contained  terms  of  limitation 
respecting  time  and  place  but  no 


Whore,  instead  of  a  license  for  a  limited  period,  there 
is  an  absolute  sale,  by  the  author  or  proprietor  of  the 
rij^iit  to  produce  the  play  upcjn  the  stage,  the  right  of  tlu- 
author  or  ])ro])rietor  to  rejiroduee  the  same  play  in  mo- 
tion pictures  is  forcN'er  suspended.  Hence,  in  such  a  case, 
neither  licensor  nor  hcensee  would  have  the  right  to  make 
a  motion  picture  reproduction  of  the  play,  nor  grant  such 
a  right  to  third  parties,  except  by  mutual  consent, — 
unless  the  play  comes  into  the  pu))lic  domain. 

In  each  instance  where  the  question  arises  as  to  whether 
the  grant  is  one  of  all  the  dramatic  rights  or  merely  of 
the  motion  picture  rights  or  the  right  to  produce  the 
play  upon  the  stage  with  living  actors,  it  is  a  question  of 
law  for  the  court  as  to  whether  or  not,  from  the  context 
of  the  contract,  the  parties  intended  to  convey  an  un- 
limited or  limited  grant. 

It  has  been  held  in  Klein  v.  Bcacli  that  the  phrase 
"presentation  on  the  stage"  construed  in  connection  with 
other  provisions  respecting  production  of  a  play  by  stock 
companies,  stage  scenerj'',  &c.,  had  reference  only  to  the 
production  of  the  spoken  play  in  theatres,  and  that  as 

statement   that   tlie   license  was  publisher  for  the  publication  of 

exclusive.     It  was  held  that  un-  her  work.     Before  the  sale  of  all 

less    the    term    "exclusive"    or  the  copies  of  the  edition  is-sued 

"sole"  or  other  words  expressing  by  the  first  publisher  she  entered 

an  intention  to  grant  an  exclusive  into  a  new  contract  with  another 

license  were  used,  there  was  no  ])ul)lisher  for  a  second  edition  of 

exclusive  grant.  the  same  work.    Held,  that  since 

Warne     v.     lioiitlalgc     (Eng.)  .she  had  granted  no  cxchisicc  right 

(1874),  43  L.  J.  Ch.  GOt;  L.  U.  IS  to  the  first  publisher  she  was  at 

Eq.4n7;:«)L.T.S.-)7;22W.  IJ.7r)0:  lil)erty    to    contract    with    other 

An  authoress  contracted  with  one  parties. 



at  the  time  the  contract  was  made,  the  production  of 
motion  picture  plays  was  a  well-known  business,  it  was 
not  intended  that  the  contract  should  carry  the  exclusive 
right  to  dramatize  for  that  purpose,  but  that  such  right 
remained  in  the  author.^ 

In  Harper  &  Bro.  v.  Klaw,  the  preamble  of  the  contract 
recited  that  the  defendants  were  to  obtain  "the  exclusive 
right  of  producing  such  dramatic  version  on  the  stage" 
and  the  body  of  the  contract  contained  a  provision  that 
Klaw  &  Erlanger  were  granted  the  sole  right  of  ''pro- 
ducing on  the  stage"  or  "perfonning"  the  "dramatic 
version"  thereof.    It  was  there  held  that  that  portion  of 

^  Klein  v.  Beach  (1917),  239 
Fed.  (C.  C.  A.)  108,  Hand,  J.: 
"The  actual  words  of  grant  are 
these:  'tlie  sole  and  exclusive  right 
to  dramatize  the  said  book  for 
presenfaUon  on  the  stnge.'  The 
plaintiff  insists  in  view  of  Kaleni 
Co.  V.  Harper,  222  U.  S.  55,  32 
Sup.  Ct.  20,  and  Frohman  v. 
Fitch,  164  App.  Div.  232;  149  x\. 
Y.  'kipp.  633,  that  dramatic 
rights  include  motion  picture 
rights.  If  used  alone  that  is 
doubtless  true,  especially  if  the 
contract  antedate  the  commercial 
use  of  motion  pictures.  Yet 
Judge  Hough  in  Harper  v.  Klaic, 
232  Fed.  (D.  C.)  609,  held  on  a 
contract  dated  in  lcS99  that  the 
words  'the  exclimire  right  of  pro- 
dvcing  such  dramatic  rrrsiori  on  the 
stage,'  did  not  give  to  the  grantee 

any  motion  picture  rights,  al- 
though it  is  true,  he  also  held 
that  such  a  grant  raised  by  impli- 
cation a  negative  covenant  against 
destroying  the  effect  of  such  a 
grant  by  motion  pictures.  That 
decision  would  avail  the  plaintiff 
here,  if  the  date  of  this  contract 
had  been  so  early;  it  will  hardly 
serve  at  the  end  of  November, 
1911,  long  after  motion  pictures 
had  become  common  and  the 
distinction  between  them  and 
the  stage  proper  had  for  all  pur- 
poses become  well  fixed.  There 
is  no  basis  for  an  implied  nega- 
tive covenant,  because  tlie  situa- 
tion has  not  changed  since  the 
contract  was  made  so  as  to 
create  an  unexpected  situation 
if  tlie  terms  be  strictly  inter- 

WHERE    nASF.I)    rrOX    A    DltAMATIC    COMl'OSITION'  <) 

the  preamble  and  body  of  the  contract,  taken  in  conjunc- 
tion with  tlie  fact  that  at  that  time  (1899)  the  motion 
picture  art  was  m  its  infancy,  did  not  pass  the  motion- 
picture  rights  to  the  Ucensee.® 

In  Photo  Drama  Picture  Co.  v.  Social  Uplift  Film  Co., 
comphxinants  claimed  that  by  securing  all  dramatization 
rights,  complainants'  assignor  possessed  the  exclusive 
motion  picture  rights.  This  construction  of  the  grant 
was  admitted  by  the  answer,"'  and  was  acquiesced  in  l)y 
th(»  courts ' 

The  situation  may  arise  where  the  author  or  proprietor 
of  a  play  before  the  play  has  been  produced  upon  the 
stage,  grants  an  exclusive  license  to  reproduce  the  play 
in  motion  pictures,  and  subsequently  thereto  attempts  to 
produce  the  play  liimself  or  grants  to  a  third  party  the 
right  to  produce  the  play  upon  the  boards.  This  may  be 
the  case  with  plays,  which  after  being  reproduced  in 
motion  pictures,  become  well  known  to  the  public. 

Query:  Has  the  motion  picture  producer  the  right  to 
enjoin  any  stage  production  of  such  play  upon  the  theory 
followed  by  the  courts  in  FroJiman  v.  FitcJi- 

While  the  question  has  not  yet  arisen  before  the  courts, 
there  seems  to  be  good  reason  for  believing  that  the  rule 
laid  down  in  the  Frohman  case  will  be  followed. 

■'  Harper   A   Bros.   v.  Klaw  &  No.    102,    Januarj-,     1915,    also 

/WflMf/cr  (1910),  232  Fed.  (D.  C.)  known    under     the    designation 

009.    SoooxcorptofJiids^oIIough'.s  Record  No.  oloO,  ir.   S.   Circuit 

opinion  on  pages  o  antl  4.  Court  of  Appeals — Southern  Dis- 

'"  Photo  Drama  Picture  Co.  v.  trict  of  New  York. 

Social    Uplift   Film   Co.,   United  ''Photo  Drama  Picture  Co.  v. 

States  Circuit  Court  of  Appeals  Social    Uplift   Film   Co.    (1915), 

for  the  Second  Circuit,  Record  220  Fetl.  (C  C.  A.)  448. 


The  decision  in  that  case  is  based  upon  the  theorj^  of 
unfair  competition.  Where  all  the  elements  of  unfair 
competition  exist,  it  would  be  only  reasonable  to  assume 
that  it  makes  no  difference  which  is  first  granted  and 
produced — the  motion  picture  or  the  play.  Since  they 
are  both  in  the  same  class,  the  production  of  each  being 
a  dramatic  performance,  the  courts  must  protect  him  who 
was  first  given  the  grant  and  who  first  produced  the  work. 
Because  I  own  a  play  and  sell  you  the  motion  picture 
rights,  I  have  no  right  thereafter  to  exploit  my  play  to 
the  detriment  of  your  rights. 

To  avoid  that  situation,  the  author  or  proprietor  of 
the  play  may  provide  in  liis  contract  with  the  motion 
picture  producer  that  he  expressly  reserves  to  himseK  or 
his  assigns,  during  the  period  of  the  motion  picture  grant, 
the  right  to  perform  the  play  with  Uving  actors  upon  the 

Then  again,  we  may  be  confronted  with  a  case  wherein 
the  proprietor  of  a  successful  and  well-known  play,  after 
its  performance  on  the  stage  for  several  years,  finally 
grants  an  exclusive  Ucense  for  its  reproduction  in  motion 
pictures.  May  he  then,  during  the  term  of  such  grant, 
continue  to  perform  his  play  with  hving  actors  upon  the 

Here,  a  contrary  situation  is  disclosed.  The  proprietor 
of  the  play  was  the  fu-st  user  of  the  property — the  pro- 
prietor of  the  motion  picture  rights,  the  second  user. 
The  latter  knows  of  the  prior  user.  He  makes  his  bargain 
with  that  in  mind.  If  he  wishes  to  have  the  exploitation 
of  the  play  upon  the  stage  suspended  (hiring  the  period 
of  his  license,  he  should  Jiot  only  bargain  for  the  motion 


picturo  rit:;hts,  l)ut  also  obtain  a  covenant  from  tho  licensor, 
i:i  which  tlie  latter  agrees  to  refrain  from  continuing  the 
stage  performances  during  the  period  of  his  license. 

Section  2.-  Where  the  motion  picture  is  based  upon  a 
novel  or  historical  work. 

With  the  coming  in  of  the  so-called  "feature  films" 
film  producers  soon  found  that  then-  chief  source  of 
material  for  such  films,  to  wit:  dramatic  compositions, 
was  rapidly  becoming  exliaustcd.  They  naturally  turned 
for  new  material  to  novels  and  historical  works;  and  these 
have  now  become  a  prolific  source  of  motion  picture 
feature  film  material. 

The  question  at  once  arises  as  to  who  may  grant  the 
motion  picture  rights  to  such  works.  A  motion  picture 
reproduction  of  a  novel  being  a  dramatization,  the  mo- 
tion pictui'e  rights  are  vested  in  the  owiier  of  the  dj-amatic 
rights.  ^- 

As  between  the  author  and  the  publisher  it  is  always  a 
question  of  contract  in  each  case  whether  the  author  has 
retained  or  parted  with  his  dramatic  rights.  A  mere 
license  to  publish  does  not  give  any  performing  rights  to 
the  publislier.'"' 

Under  the  Copyright  Law  the  owner  of  the  copyright 

>*  Photo  Drama  Motion  Picture  tion    of    the    novel    witli    liviiiR 

Co.  V.  >^ucial  Uplift  Corp.  (1915),  actors  upon  the  stage,  and  tiie 

220  Fed.  (C.  C.  A.)  448,  which  right  to  reproduce  the  novel  in 

holds  that  the  grantee  of  the  ex-  motion  pictures, 

elusive  dramatization  riglits  to  a  "  iri7//(/m.s'  ct   al.   v.  Fildman, 

novel  accjuires  two  distinct  rights:  (Eng.)  (1913),  Times,  Oct.  IS. 
the  right  to  make  a  play  produc- 


in  a  novel  has  the  exclusive  right  to  dramatize  the 

Hence,  where  the  pubhsher  of  a  novel  copyrights  the 
work  of  an  author,  a  third  party  purchasing  the  motion 
picture  rights  to  such  novel,  without  notice  of  the  rights 
of  the  author,  buys  them  free  from  any  claims  which  the 
author  may  have  as  against  the  pubhsher.  If  the  record 
in  the  copyright  office  shows  that  the  pubhsher  is  the 
owner  of  record  of  such  copjTight,  the  purchaser  is  not 
bound  to  inquire  what  relationship  exists  with  respect  to 
the  work  between  the  pubhsher  and  the  author. ^-^ 

As  a  matter  of  fact  the  pubhsher  may  be  holding  the 
copyright  as  trustee  for  the  author;  his  rights  may  be 
limited  to  the  extent  only  of  reproducing  the  novel  in 
copies  for  sale.  But  if  the  copyright  record  does  not  dis- 
close any  such  relationship  a  purchaser  for  value  without 
notice  buys  free  and  clear. 

If  the  author  wishes  to  retain  his  rights  it  is  advisable 

"  Copyright  Act  of  1909,  Sec-  have  suspected,  although  an  ex- 

tion    1,   subdivision    (b).     Photo  amination    of    the    record    title 

Drama    Motion    Picture    Co.    v.  provided  for  by  law  shows  good 

Social    Uplift   Corp.    (1915),  220  title.     This,  to  my  mind,  would 

Fed.  (C.  C.  A.)  448.  place  a  duty  upon  a  person  dcal- 

^^  Bradij  \.  Reliance  Co.  (1916),  ing  with  the  owner  of  a  copy- 
232  Fed.  (D.  C.)  259,  Mayer,  J.:  righted  work  which  the  law 
"Where  a  publisher  copyriglits  a  never  contemplated,  and  which 
work  of  an  author  tlicre  must  of  from  the  standpoint  of  com- 
necessity  exist  some  arrangement  mercial  requirements  would  be 
between  them,  and  that,  per-  unjust,  and  seriously  hamper  legit- 
chance  the  author  may  have  re-  imate  dealings."  See  also:  Photo 
served  something  undisclosed  Drama  Motion  Picture  Co.,  Inc., 
which  the  person  dealing  witl;  v.  Social  Uplift  Film  Co.  (1915), 
the  owrur  of  tl»c  copyright  should  220  Fed.  (C.  C.  A.)  448. 


for  him  to  file  an  instrument  in  the  copyright  office 
setting  forth  the  fact  that  the  copyright  is  held  by  his 
pubUsher  as  a  trustee  merely,  subject  to  specified  limita- 
tions. Anything  which  would  put  the  prospective  pur- 
chaser of  the  motion  picture  rights  upon  incjuiry  would 
probably  be  sufTicient. 

The  author,  by  faiUng  to  have  some  notation  made  in 
the  copyright  office  of  his  rights  against  the  publisher, 
does  not,  however,  lose  his  remedies  against  the  publisher 
for  the  breach  of  the  trust.  The  registration  of  the  copy- 
riglit  in  the  name  of  the  assignee  (publisher)  does  not 
confer  the  dramatic  rights  upon  the  assignee  whore  they 
had  been  retained  by  the  author.  Under  such  an  ar- 
rangement the  assignor  (author)  becomes  the  proprietor 
of  the  dramatic  rights  secured  by  the  copjTight  in  the 
name  of  the  pubhsher.^^ 

There  arises  the  querj',  where  motion  pictures  are 
produced  by  assignees  both  of  the  author  who  originally 
retained  the  right,  and  of  the  third  party  who  purchased 
the  rights  from  the  publisher,  as  to  who  may  enjoin,  if 
at  all,  the  exhi])ition  of  the  motion  picture  of  the  other. 
It  would  seem  to  follow,  from  a  reading  of  Judge  ^Mayer's 

•«  Ford  V.   Blaney    Amusement  of   the   magazine   and   that   the 

Co.    (190G),    14S    Fed.    (C.    C.)  dramatization  rights  remained  in 

642:  Tlie  work  was  published  in  the  autlior.     See  also:  Mifflin  v. 

a    magazine    wliich    was    copy-  White  {lim),  1<)0  U.  S.  200;  23 

righted    by    the    magazine    pro-  Sup.  Ct.  709;  Mifflin  v.  Duttun 

prietor.     It   was   held    that    by  (1003),  190  U.  S.  205;  23  Sup.  Ct. 

selling  his  right  to  copyright  but  771;  Holmes  v.  Ilurd  (1S99),  174 

reserving  to  himself  the  drama-  U.  S.  82;  19  Sup.  Ct.  GOG;  Dam  v. 

tization    rights,    the    work    was  Kirk  La  Shelle  (1910),  175  Fed. 

copyrighted  by  the  copyrighting  (C.  C.  A.)  902. 


decision  in  Brady  v.  Reliance  Co.,  that  the  publisher's 
assignee  has  the  exclusive  right  to  the  production  of  the 
picture,  and  that  the  right  of  the  author's  assignee  is 
suspended  during  the  term  of  the  grant  from  the  publisher 
to  his  assignee. 

If  there  is  an  outright  sale  to  the  third  party  by  the 
publisher  of  the  motion  picture  rights,  the  author  loses 
such  rights  forever. 

Many  of  our  most  popular  novels  are  based  upon  his- 
torical events.  There  is  no  question  that  these  events 
are  within  the  public  domain.  Let  us  take  the  case  of  a 
historical  novel  written  to-day  and  based  upon  some 
familiar  historical  subject,  the  development  of  the  theme 
adhering  closely  to  the  sequence  of  the  events  as  they 
actually  occurred.  Let  us  assume  that  this  novel  is  duly 
copyrighted,  and  that  the  author  or  proprietor  of  the 
novel  grants  away  the  motion  picture  rights.  Will  the 
licensee  acquire  such  rights  in  the  arrangement  and  de- 
velopment of  his  theme  as  will  preclude  another  from 
producing  a  similar  picture? 
Q\0^  We  do  not  think  so.  ;^  The  arrangement  and  develop- 
ment of  a  well-known  historical  theme  cannot  strictly  be 
said  to  be  original,  and  while  the  novel  as  a  whole  may 
be  the  subject  of  copyright,  yet  those  portions  of  it  which 
treat  of  things  within  the  public  domain  cannot  acquire 
the  protection  of  copyright. 

Anyone  may  make  an  independent  dramatization  from 
the  common  source  but  must  not  make  use  of  or  resort 
to  the  liconsoo's  dramatization  or  the  novel  from  which 
the  dramatization  was  made. 

For  the  same  reason  a  motion  picture  based  directly 


upon  a  well-known  historical  episode,  instead  of  upon  a 
novel  and  duly  e()i)yriglited  can  acciuire  no  exclusi\e  ri^ht, 
and  the  proprietor  may  not  enjoin  the  reproduction  of 
another  i)icture  portraying  the  same  historical  event  or 
sequence  of  events. 

This  rule  is,  of  course,  sul)ject  to  the  limitation  that 
in  the  original  novel  or  motion  picture  the  events  spoken 
of  are  purely  historical,  ^^^len  these  events  are  so  inter- 
spersed with  imaginative  fiction  as  to  constitute  a  com- 
plete story  in  themselves,  the  treatment  may  then  be 
said  to  be  original  and  a  reproduction  of  the  work  with 
the  imaginative  fiction  contained  therein,  constitutes  an 

Historical  events  are  themes  in  the  pubhc  domain. 
Wliat  is  accorded  protection  in  the  case  of  themes  in  <he 
public  domain  is  the  original  development  and  Ircalment 
of  those  themes.  It  is  scarcely  possible  for  two  people 
to  develop  one  theme  m  the  identical  manner;  for  that 
reason  it  is  unlikely  that  we  will  have  an  exact  duplication 
on  films  of  c\'en  a  popular  and  well-known  theme  unless 
there  is  an  intent  to  infringe." 

Section  3. — Where  the  motion  picture  is  based  upon  a 

short  story,  sketch,  poem,  lecture,  sermon  or  other 

kindred  work. 

The  rights  of  the  author  of  a  short  stor>',  sketch,  poem, 

lecture,  seniion  or  other  kindred  work  are  identical  with 

those  of  a  novelist.'^    The  rights  and  liabilities  which  arise 

upon  the  sale  of  such  work  by  the  author  or  proprietor 

"  See     cases    of     iiifrinp;cmcnt  "  Copyright   Act  of  1909,  See- 

under  Sections  157  to  IGl.  tion  1,  subdivisioix3  (a),  (b),  (d). 



to  a  motion  picture  producer  are  the  same  as  those  which 
arise  between  a  novehst  and  motion  picture  producer.  ^^ 

It  is  customary  for  the  pubUsher  of  a  periodical  or 
newspaper  to  copyright  the  entire  work  in  his  own  narne. 
If  he  has  been  authorized  by  the  author  or  proprietor  of 
the  work  to  secure  copyright,  but  the  rights  granted  to 
him  are  solely  that  of  pubUcation  of  the  work,  the  maga- 
zine or  newspaper  proprietor  holds  the  copyright  as 
trustee  for  the  author  or  proprietor  of  the  work."° 

"  Section  2,  upon  the  sale  of  the  book ,  which 

^Ford  V.  Blaney   (1906),   148      is   alleged   in   the   complaint   in 

Fed.  (C.  C.)  642:  "I  think, 
under  this  provision  (referring 
to  Section  4952  of  the  U.  S.  Re- 
vised Statutes)  it  is  not  necessary 
that  the  author  himself  should 
have  taken  out  the  copjTight 
of  a  book,  in  order  to  preserve 
the  right  of  dramatizing  it,  but 
that  the  author  can  sell  the 
copyriglit  of  the  book  to  a  per- 
son, wlio,  as  proprietor,  can 
take  out  the  copyright,  while 
the  author,  at  the  same  time, 
retains  the  right  of  dramatization. 
If  a  copyright  of  a  book  has  been 
obtained  by  anybody  entitled 
by  law  to  obtain  it,  I  think  that 
the  author  of  the  book  or  his 
assigns,  a  term  which  as  used  in 
Section  4952,  means  in  my  ojjinion 
an  assignee  of  the  riglit  of  dram- 
atization, has  the  exclusive 
right  to  dramatize  the  work,  if 
he  reserved  the  right  to  dramatize 

this  case.  The  object  of  the 
statute  seems  to  have  been  to 
provide  that  the  author's  right 
of  dramatization  of  a  book  shall 
not  be  protected  unless  the  book 
be  copyrighted;  but  /  do  not  see 
anything  in  the  statute  which  re- 
quires that  the  author  shall  take 
out  the  copyright  of  the  book." 

In  Drone  on  Copj'right,  at 
page  260:  "A  person  who  is  not 
the  author  or  owner  of  a  work 
may  take  out  the  copyright  in 
his  own  name,  and  hold  it  in 
trust  for  the  righlful  owner. 
Thus,  when  an  article  has  first 
been  published  in  a  cyclopjcdia, 
magazine,  or  any  other  publica- 
tion, the  h^gal  title  to  the  copy- 
right, if  taken  out  in  the  name 
of  the  publisher,  will  vest  in  him. 
But  it  may  be  the  property  of 
the  author,  and  held  in  trust  for 
him.    And  the  same  is  true  when 

WHKRE   Py'TlUE   IS  HASt:D  UPON  A   SHOUT  STORY,   ?:TC.        17 

Here,  as  in  tlie  case  of  a  novel,'-'  care  must  be  exercised 
by  the  author  or  i)roprietor  of  the  work,  if  he  has  re- 
tained any  riglits  therein,  to  have  something  placed  upon 
the  copjTight  record  to  show  what  rights  have  been 
granted  to  the  publisher  and  what  rights  have  been 

Where  the  author  or  proprietor  of  the  work  wishes 
to  resers'e  the  dramatic  rights,  the  usual  arrangement  is 
for  him  to  make  a  contract  with  the  publislier  granting 
the  exclusive  publication  rights  to  the  publisher  and  au- 
thorizing him  to  copyright  the  work.  The  pubhsher  on 
his  part  agrees  to  assign  the  copyright  when  secured  by 
him  to  the  author  or  proprietor  of  the  work.  This  enables 
the  publisher  to  copyright  the  entire  periodical  or  news- 
paper and  at  the  same  time  obtain  the  benefit  of  a  first 
publication.  The  publisher  then  assigns  his  copjTight  to 
the  author  or  proprietor  of  the  work,  who  now  becomes 
possessed  of  all  the  rights  incidental  to  copjTight,  in- 
cluding, of  course,  the  right  to  dramatize. 

In  this  way  there  is  no  dedication,  the  magazine  ])ub- 
lisher  is  the  first  one  to  publish  the  work,  and  the  author 
or  proprietor  of  the  work  now  has  the  dramatization 
rights  which  include  the  motion  picture  rights.-- 

the   copyrlRht   of   a   l)0()k   wliich  and   Express   v.    Life   Pitbl.    Co. 

belongs  to  the  author  is  entered  (1912),  192  Fed.  (C.  C.  A.)  S99. 
in    the    name   of   the    pubhsher.  *'  Section  2. 

In  such  case,  a  court  of  ecjuity,  ^' Ford  v.   Blawy   (190G),  HS 

if    called    upon,    may    decree    a  Fed.   (C.  C.)  642;  Dom  v.  Kirk 

transfer  of  the  copyrip;ht  to  be  La  Sheik  (1910),  17.')  Fed.  (C.  C. 

made  by  the  owner."     See  A.)  902;  Fitch  v.   Young  (1911), 

Dam  V.   Kirk  La  Shellc   (1910),  2.30  Fed.  (D.  C.)  743;  aflf'd  239 

175  Fed.  (C.  C.  A.)  902,  and  Mail  Fed.  (C.  C.  A.)  1021. 


If  the  author  or  proprietor  of  the  work  wishes  to  secure 
the  copjTight  in  his  own  name  he  may  do  so  by  placing 
the  proper  notice  of  copyright  immediately  after  the 
title  of  his  work  and  by  depositing,  promptly  after  pub- 
Ucation,  two  copies  of  the  periodical  or  newspaper  in 
which  his  work  is  contained  together  with  an  apphcation 
for  copjTight  registration,  and  the  required  fee,  in  the 
office  of  the  Register  of  Copyrights. -^ 

Finally,  it  must  be  borne  in  mind  that  if  the  publisher 
is  not  given  the  right  to  copyright  the  work  contained 
in  his  periodical  or  newspaper,  though  he  has  been  given 
the  right  to  pubhsh  such  work,  the  work  vnW  not  be 
protected  by  a  copyi'ight  secured  upon  the  entire  pub- 
hcation  by  the  proprietor  of  the  periodical  or  newspaper, 
and  the  work  will  fall  into  the  pubhc  domain. 

In  that  event  any  motion  picture  producer  may  use 
the  work  without  securing  the  consent  of  the  publisher, 
or  the  author  or  proprietor  of  the  work.-'' 

23  Copyright  Act  of  1909,  Sec-  proprietor    in    copyi'ighting    the 

tions  9,  10  and  12;  Rules  and-  magazine,  secures  copyright  only 

Regulations   for   Registration   of  in  those  parts  of  the  magazine 

Claims     to    Copyright,    Section  which  belong  to  him  or  for  the 

33.  owners  of  which  he  is  acting  as 

^*  Mifflin  V.  White— Mifflin  v.  agent.     The  fact  that  the  work 

Dutton  (1903),  190  U.  S.  2G0-265;  was  published  in  serial  form  and 

23  Sup.  Ct.  709-771.    Tlie  publi-  subseciuently    coml)ined    in    one 

cation  of  a  story  in  a  magazine,  complete    work   and   such    com- 

the  ownership  of  such  story  re-  plete  work  entered  in  the  copy- 

maining  in  the  author,  and  the  right  office  did  not  validate  the 

publisher    not    l)eing    the    agent  copyright.     See  also:  Holmes  v. 

of  th(!  author  in  securing  copy-  Hurst   (1S99),   174  U.  S.  82;   19 

right,    constituted    a    dedication  Sup.  ("t.  00(). 

of    tlie    work.      The    magazine  On  tfie  question  wliether  there  is 


Section  4. — Where  the  motion  picture  is  based  upon 
an  original  scenario,  that  is  one  not  based  upon 
any  other  work. 

\Miethcr  or  iK^t  a  scenario  of  a  motion  picture  play  may 
be  the  subject  of  copyright  as  an  unpublished  dramatic 
composition,  is  an  open  question.  The  Register  of  Copy- 
rights has  taken  the  position  that  Section  eleven  of  the 
Copyright  Act  retiuires  the  deposit  of  "one  complete  copy 
of  such  work  if  it  be  a  dramatic  composition,"  and  that  a 
scenario  is  not  a  completed  work  and  hence  does  not 
fulfill  the  requirements  of  that  section. 

In  this  respect  we  bcheve  that  he  is  \\Tong.  To  our 
mind  a  scenario  is  a  completed  work  in  that  it  is  an  exact  i 
reproduction,  in  words,  of  action  upon  the  screen.  It^ 
embodies  witliiii  itself  the  orderly  arrangement  and  de- 
velopment of  a  theme  that  enables  actors  to  reproduce 
the  same  before  the  camera.  In  that  respect  it  is  similar 
to  a  play,  wliich  is  primarily  a  veliicle  to  enable  actors  to 
portray  the  same  upon  the  stage.  Both  the  scenario 
and  tlie  play  have  as  their  primary  object  the  attainment 
of  this  end.  .Vnd  the  fact  that  in  the  play  we  have  dialogue 
should  not  alter  the  situation.  The  scenario  frequently 
has  what  the  play  lacks — minute  directions  as  to  acting. 
And  wliile  it  is  doubtless  true  that  mere  stage  directions 
and  stage  business  are  not  entitled  to  protection  under 
the  Cop}Tight  Law,-^  yet  where  the  composition  tells  a 

n   presumption  that  the  magazine  v.  Scribner  (1S92),  144  U.  S.  488; 

proprietor   acts   a.s   agent  for   the  12  Sup.  Ct.  734. 
owner    of   the    work    in    securing  *^  Serrena  v.  Jefferson    (1888), 

copyright.     See:   Pulte   v.    Derby  33  Fed.    (C.   C.)   347;   Bloom  v. 

(1852),  o  McLean,  328;  Bdford  Xixon  (1903),  125  Fed.    (C.  C.) 



story  not  in  narrative  form,  but  by  words  giving  direc- 
tions as  to  acting  and  display  of  emotions,  it  is  as  truly 
a  dramatic  composition  as  a  work  narrating  a  story  in 
the  form  of  dialogue.-® 

977;  Chappell  v.  Fields  (1914), 
210  Fed.  (C.  C.  A.)  864;  Savage 
V.  Hoffman  (1908),  159  Fed.  (C. 
C.)  584;  Fuller  v.  Bemis  (1892), 
50  Fed.  (C.  C.)  926;  Bishop  v. 
Viviana  &  Co.  (Eng.)  (1909), 
Times,  Jan.  5.  For  additional 
cases  see  Section  148. 

^'^Daly  V.  Palmer  (1868),  6 
Blatchf.  256:  A  scenario  is  a 
dramatic  composition  under  the 
description  given  in  this  case. 
"A  dramatic  composition  is  such 
a  work  in  which  the  narrative  is 
not  related  but  is  represented  by 
dialogue  and  action.  Where  a 
dramatic  composition  is  repre- 
sented in  dialogue  and  action  by 
persons  who  represent  it  as  real, 
by  performing  or  going  through 
with  the  various  parts  or  charac- 
ters assigned  to  them  severally, 
the  composition  is  acted,  per- 
formed, or  represented;  and  if 
the  representation  is  in  pul)lic, 
it  is  a  public  representation.  To 
act  in  the  sense  of  the  statute  is 
to  represent  as  real,  by  coun- 
tenance, voice  or  gesture  that 
which  is  not  real.  A  cliaractor 
in  a  play   who  goes   through  a 

series  of  events  on  the  stage  with- 
out speaking  if  such  be  his  part 
in  the  play,  is  none  the  less  an 
actor  in  it  than  one  who,  in  addi- 
tion to  motion  and  gestures, 
uses  his  voice.  A  pantomime  is 
a  species  of  theatrical  entertain- 
ment in  which  the  whole  action 
is  represented  by  gesticulation 
without  the  use  of  words.  A 
written  work,  consisting  wholly 
of  directions  set  in  order  for 
conveying  the  ideas  of  the  author 
on  a  stage  or  public  place,  by 
means  of  characters  who  repre- 
sent the  narrative  wholly  by 
action  is  as  much  a  dramatic 
composition  designed  or  suited 
for  public  representation  as  if 
language  or  dialogue  were  used 
in  it  to  convey  some  of  the  ideas." 

The  Circuit  Court  of  Appeals 
in  Daly  v.  Webster  (1892),  56 
Fed.  (C.  C.  A.)  at  p.  486,  ap- 
proved of  the  excerpt  of  the  opin- 
ion of  Judge  Blatchford  quoted 

Fuller  V.  Bemis  (1892),  50  Fed. 
(C.  C.)  926:  "It  is  essential  to 
such  a  composition  that  it  should 
tell  some  story.     The  plot  may  be 


A  play  may  have  greater  literary  \alue,  yet  the  srenario 
usually  possesses,  for  its  own  peculiar  purposes,  a  greater 
practieal  value.  The  author  of  a  scenario  should  not  l>e 
compelled  to  publish  his  work  in  book  form  in  order  to 
secure  copyright  therein.  The  scenario  is  not  written  for 
the  i)urposc  of  l)eing  reproduced  in  copies  for  sale. 

If  our  position  is  correct,  the  rights  of  the  author  or 
proprietor  of  a  scenario  are  coincident  with  those  of  the 
author  or  ])roprietor  of  a  dramatic  composition.  He  has 
the  exclusive  right  to  make  other  forms  of  dramatiza- 
tions of  the  scenario,  he  may  develop  the  scenario  into 
the  form  of  a  short  story  or  a  novel."  He  may  reproduce 
the  scenario  in  copies  for  sale.  An  outright  sale  of  the 
manuscript  of  an  uncopyrighted  scenario  or  of  the  copy- 
right of  a  copyrighted  scenario  conveys  to  the  purchaser 
all  the  rights  which  the  author  had.-" 

simple.      It  vunj  be  bid  the  nana-  Moore  v.  Edwards  {Eng.)  (190.3), 

tire  or  reprcfientation  of  a  single  Tiiiu's,  March    3:    Ilelil    that    a 

transaction;  but  it  mitst  repeat  or  "scenario"  of  a  play  when  written 

viimic  some  action,  speech,  emotion,  clown  was  the  .subject  of  protec- 

passion,    or    character,    real    or  tion,  a.s  a  dramalic  composition. 
imaginary.     Ami  when  it  does,  it  Wiganx.  Strange  (Eng.)  (1865), 

is  the  idea-f  thii.'i  expressed  which  L.  R.  1  C.  P.  17."):  A  ballet  was 

become  subject  of  copyright."  held  to  be  a  play. 
Tate  V.  FiUlbrook  (Eng.)  (1908) ,  «'  See  Section  1. 

77  L.  J.  K.  H.  577;  1  K.  B.  821;  ^Palmer  v.  DeWitt  (1872),  47 

98  L.  T.  70C;  24  T.  L.  R.  347.  X.  Y.  532:  "This  proix-rty  in  a 

An  idea  or  plot  together  with  the  manuscript  is  not  distinsuishable 

manual  and  physical  actions  was  from  any  other  personal  property, 

held   to   be   "a   dramatic   |)iece"  It  is  poverned  by  the  .same  rules 

within  the  meaniiiK  of  Section  2  of  transfer  ami  succession  and  is 

of  the  English  Copyright  Act  of  protected   by   the   same   process, 

1842.  and  has   the   benefit  of  all   tlie 



Hence  in  the  usual  transaction  between  a  scenario 
writer  and  a  film  producer  where  the  scenario  is  pur- 
chased for  a  lump  sum  of  money,  the  author  of  the  sce- 
nario divests  himself  of  all  rights  in  and  to  the  same  and 
the  film  producer  acquires  the  sole  right  not  only  to  make 
a  motion  picture  reproduction  of  the  scenario,  but  also 
to  make  any  and  all  of  the  above  mentioned  versions  of 
the  same.  Here,  as  in  the  case  of  a  novel  or  drama,  the 
author  may  limit  the  grant  by  express  reservations  in  the 
contract  of  sale. 

Wliere  there  is  no  contract  of  sale,  but  a  sale,  that  is, 
where  the  manuscript  and  money  are  simultaneously  ex- 
changed, the  producer  acquu-es  all  rights  in  the  scenario.-^ 
remedies  accorded  to  other  prop-      author  in  assigning  the  right  to 

erty."  It  follows  "the  person  of 
the  owner,  and  is  governed  by 
the  law  of  his  domicile." 

29  Dam  V.  Kirk  La  Shelle  (1910), 
175  Fed.  (C.  C.  A.)  901:  "Now, 
as  a  matter  of  law,  it  seems  pos- 
sible to  draw  only  one  conclusion 
from  the  facts  surrounding  the 
acquisition  of  the  story  by  the 
Ess  Ess  Publishing  Company,  and 
that  is  that  it  became  the  pur- 
cha.scr,  and  consequently,  the 
proprietor  of  the  work,  with  all 
the  rights  accompanying  owner- 
ship. The  author  offered  the 
story.  The  publislier  accepted 
and  paid  for  it,  and  the  author 
transferred  it  without  any  reser- 
vations whatever. 

"While  it  is  probalilc  tliat  an 

publish  and  vend  his  work  may 
retain  and  reserve  the  rights  of 
translation  or  dramatization  {Ford 
V.  Blaney  Amusement  Co.  (1906), 
148  Fed.  (C.  C.)  642,  a  sale  or  as- 
signment without  reservations 
would  seem  necessarily  to  carry  all 
the  rights  incidental  to  ownership. 
And  a  transaction  in  which  an 
author  delivers  his  maniiscript  and 
accepts  a  sum  of  money  'in  full 
payment  for.  story'  cannot  be  re- 
garded as  a  sale  ivith  reservations. 
The  courts  cannot  read  words  of 
limitation  into  a  transfer  which 
the  parties  do  not  choose  to  use." 
Sec  also:  Lacy  v.  Toole  (ICng.) 
(1867),  15  L.  T.  N.  S.  512,  wherein 
it  wa,s  held  that  a  letter  written 
by  the  owner  of  a  copyright  in  a 

WHERE    PICTURE    IS    BASED    UPON    A    NEWS   ITEM       23 

It  froquently  happens  that  in  vending  his  wares  tiio 
scenario  writer  sends  copies  of  the  same  work  to  a  ninnher 
of  motion  picture  producers.  Several  of  the  producers 
purcliase  the  scenario,  each  not  knowing  that  some  other 
producer  has  purchased  the  same  work.  The  first  pur- 
chaser in  point  of  time  will  be  the  owner  of  the  scenario, 
for  at  the  time  that  the  other  producers  accept  the  offer 
of  the  scenario  WTiter,  there  is  nothing  that  they  can 
purchase,  the  author  having  been  divested  of  his  title 
to  the  scenario  by  the  prior  purchase  of  the  work. 

Section  5. — Where  the  motion  picture  is  based  upon  a 
news  item. 
It  is  well  settled  that  the  facts  and  ideas  contained 
Li  items  in  the  daily  newspapers,  and  held  out  to  be  state- 
ments of  fact,  may  be  appropriated  and  used  in  any 
manner  by  any  one  of  the  pubUc.^°   The  phrase  above 

dramatic    piece    to    another    in  tcrnational  News  Service    (1917), 

wuich  he  said:  "to  let  you  have  240  Fed.  (D.  C.)  983;  aff'd  June, 

my  drama"  assigned  all  the  rights  1917, opinion  by  Hough,  J. ;  Walter 

in  the  drama.  v.  Slcinkopff  (Eng.)  (1892) ,  3  Ch. 

^0  Tribune    Co.     v.     Associated  4S0;  Springfield  \.  Thame  (Eng.) 

Press   (1900),  IIG   Fed.    (C.    C.)  (1903),  89  L.  T.  242;  Press  Asso- 

126,  and  cases  cited  therein.     In  ciation  v.  Xorthcrn,  etc.,  Agency 

Dnvics  V.  Bowes  (1913),  209  Fed.  (Eng.)  (1910),  Times,  Dec.  8. 

(D.  C.)  53;  aff'd  219  Fed.  (C.  C.  See    in    tliis    connection:    Ex- 

A.)  178,  the  court  said:  "All  tliat  change  Telegraph  Co.  v.  Howard 

wivs   ever   copyriglited   regarding  (Eng.)    (1900),  Times,  Mar.   22. 

this  tale  was  tlie  form  of  telling,  A  news  agency   has  a   projx>rty 

the  sequence  and  choice  of  words  right  in  unpublished  news,  and 

and    arrangement    of    sentences  may  prevent  a  rival  agency  from 

coined    by    the    plaintiff.  .  .  ."  stealing  the  same. 
See  also:  Associated  Press  v.  In^ 


used  ''held  out"  is  used  advisedly.  Even  where  the 
news  item  is  a  creation  of  the  mind  of  the  reporter,  and 
hence,  an  original  work,  yet  if  the  work  is  pubhshed  as 
news  and  not  as  fiction,  the  author  or  proprietor  of  the 
work  wdll  not  be  permitted  to  show  that  the  work  was 
one  solely  of  his  creation. ^^ 

Where,  however,  the  work  pubhshed  in  the  newspaper 
is  fiction  and  is  presented  to  the  pubhc  as  such,  the  same 
rights  accrue  to  the  author  or  proprietor  as  in  the  case 
of  a  work  pubhshed  in  a  magazine. ^- 

Section  6. — "Where  the  motion  picture  is  based  upon  a 
work  in  the  public  domain. 

Whenever  possible,  motion  picture  producers  of  course 
make  use  of  such  works  as  are  in  the  pubhc  domain. 
Care  must  be  taken  that  in  making  use  of  such  works,  no 
use  is  made  of  other  works  based  upon  those  in  the  public 
domain.  It  frequently  occurs  that  in  making  adaptations 
of  such  public  literary  property,  the  ingenuity  and  orig- 
inality of  the  adaptor  has  combined  to  create  a  new  work. 

^^^lere  the  work  is  a  novel  or  short  story  the  adaptor 
may  make  a  dramatization  thereof;  he  may  novelize  a 
dramatic  composition;  he  may  rearrange  the  work  and 
in  so  doing  use  originality;  he  may  condense  such  work. 
Those  portions  of  such  new  work  which  are  due  to  the 

"Danes  V.  Boiccs   (101;}),  200  was   a    translation    from   a  well- 

Fcd.   (D.  C.)  .W;  aff'd  210  Fed.  known   foroi^n   writer,  held  that 

(C.  C.  A.)  178.  such  pretense  vitiated  the  copy- 

Wright  V.  Tullis  (EnR.) ,  1  C.  B.  riRht. 

87;i.      Where    a    putjhshcr    pre-  '^  Section  3. 
tended  that  a  copyrighted  work 

WHERE    PICTURE    IS    PRODUCED    IN    SERIAL   FORM       2.') 

originality,  ingonuity  and  literary  effort  of  the  adajjtor 
will  be  fully  i)rutected. 

The  same  api)lies  to  translations  made  of  foreign  works 
in  the  public  domain.  The  translator  is  entitled  to  pro- 
tect his  translation  as  against  everyone.  No  one  may 
use  his  translation,  although  anyone  may  make  his  own 
independent  translation  of  the  original  work  and  make 
whatever  use  of  his  own  translation  and  the  original  work 
he  sees  fit.^' 

Section  7. — Where  the  motion  picture  is  produced  in 
serial  form. 

A  recent  development  of  the  motion  i)icture  industry 
is  the  production  of  films  in  which  the  story  is  told  in 
serial  form,  one  or  two  reels  being  shown  at  a  time. 
Simultaneously  with  the  exhibition  of  the  film  the  story 
of  the  picture  is  published  in  newspapers  in  instalhnents. 

The  right  to  publish  the  story  in  the  newspapers  does 
not  necessarily  belong  to  the  film  producer.  It  belongs 
to  the  o\Mier  of  the  publication  rights  in  the  drama,  novel, 

"  Stevemon  v.  Fox  (1915),  22G  motion  picture  play  was  prepared 

Fed.  {D.C.)0'M]  Shook  X.  Rankin  from  and  is  an  appropriation  of 

(1875),   Fed.   Ca.s.    (C.   C.)  No.  the  plaintiff's  Fechtcr  version  and 

12804;  O'Neill  v.  General  Film  Co.  infringes  upon  i)laintiff's  common 

(1915),    152    N.    Y.    Supp.    599;  law  property  riglit  therein.     Dc^ 

modified  and  aff'd  in  171  A.  D.  fendant  claims  that  the  motion 

(X.  Y.)   854;   157   N.  Y.  Supp.  picture    play    was    produced    by 

1028;  but  not  modified  on  qucs-  resort  to  original  .sources,  alleged 

tion   of   infrinffeinent.      The   de-  to  he  open  to  all  .  .  .  and  that 

fendant  was  leasing  out  a  photo  in  .so  far  as  there  is  any  similarity 

play  entitled  "Count  of  Monte  between  the  motion  picture  play 

Cristo."    "  It  is  claimed  that  such  and   the   Fechtcr   version,   it   is 


story  or  scenario  from  which  the  film  was  reproduced.^* 
The  printing  of  the  work  whether  in  whole  at  one  time 
or  in  parts  at  different  times  as  in  a  serial  story,  con- 
stitutes merely  a  reproduction  of  the  work  in  copies  for 
sale  within  the  meaning  of  the  Copyright  Act.  It  fre- 
quently happens  that  the  film  producer  has  merely  the 
right  to  reproduce  the  work  in  the  form  of  a  motion  picture, 
the  pubHcation  rights  having  been  retained  by  the  author 
or  having  been  granted  to  some  third  party. 

The  expression  ''serial  rights"  has  acquired  a  secondary 
meaning  in  the  pubhshing  and  motion  picture  business. 
Where  one  sells  the  "serial  rights"  the  courts  will  con- 
strue the  sale  as  a  grant  of  ''all  publishing  rights,  includ- 
ing magazine  and  newspaper  pubhshing  rights,  and 
excepting  only  book,  dram.atic  and  moving  picture  scenario 
rights."  Ey  book  rights  the  court  undoubtedly  means 
the  right  to  novehze.^^ 

Section  8. — ^Where  the  relationship  13  tliat  of  employer 
and  employe. 
It  frequently  becomes  necessary  to  decide  whether  the 

lawful   and   proper   in   that   the  See  also  Section  159. 

similar  incidents  and  characters  »'  New  Fiction  Pub.  Co.  v.  Star 

are  found  in  the  novel  and  earlier  Co.  (1915),  220  Fed.  (D.  C.)  994. 

versions  [that  is  the  works  in  the  ^''  New  Fiction  Pub.  Co.  v.  Star 

public  domain]."    The  court  then  Co.    (1915),   220    Fed.    (D.    C.) 

finds  that  the  defendant  has  in-  994. 

fringed  tlic  plaintiff's  work.  See  also:  Heineman  v.  Smart 

See  also:  Byrne  v.  Statist  Co.  Set  (Eng.)  (1909),  Times,  July  15. 

(EnR.)  (1914),  1  K.  B.  622,  and  Defines  "serial   rights,"   "maga- 

Wyattw.Burnard  {Eng.), 3  Y.  and  zine    rights"     and     "newspaper 

B.  77.  syndicate  rights." 


relationship  existing  between  an  author  and  a  motion 
picture  j^roducer  is  that  of  independent  contractors  or 
that  of  master  and  servant. 

If  the  relationship  is  one  of  independent  contractors 
then  the  author  retains  all  those  rights  in  his  work  which 
have  not  been  expressly  or  by  necessary  implication,  from 
the  circumstances  of  the  case,  granted  to  the  motion 
picture  producer. 

If  the  relationship  is  one  of  master  and  ser\'ant  there 
is  a  presumption  in  law  that  the  parties  bargained — one 
to  give  up  the  results  of  his  mental  labor  in  exchange 
for  a  stipend  paid  by  the  other;  and  unless  the  servant 
expressly  reserves  unto  himself  some  rights  in  the  work, 
the  master  will  be  deemed  the  sole  proprietor  thereof 
and  entitled  to  all  the  benefits  flowing  out  of  such  owner- 
ship.^^ In  such  case  no  formal  assignment  of  all  rights 
in  the  work  is  necessary.^^ 

^^  Colliery  Engineer  Co.w.  United  Fed.    (C.    C.)    892;    Press   Puh. 

Corresp.  Schools  Co.    (1899),  94  Co.  v.  Monroe   (1896),  73  Fed. 

Fed.     (C.     C.)     152;     Carte    v.  (C.  C.  A.)  196;  Chamberlayne  v. 

Evans   (1886),  27   Fed.   (C.   C.)  Am.  Law  Book  Co.   (1908),   163 

861;    Schutnacher    v.    Schweneke  Fed.    (C.    C.)    858;    Am.    Law 

(1885),    25    Fed.    (C.    C.)    466;  Book  Co.  v.  Chamberlayne  (1908), 

Little  V.  Gould  (1852),  Fed.  Cas.  105  Fed.  (C.  C.  A.)  313;  Peters  v. 

No.S395;2Blatchf..362;LouTe/jrc  Borst  (1889),  9  N.  Y.  Supp.  789; 

V.  Dana  (1869),  Fed.  Cas.  No.  reversed  in  142  X.  Y.  62;  36  X.  E. 

8136;  Solomon  v.    United  Slates  814;   Heine   v.'  Applcton    (1857), 

(1890),  137  U.  S.  342;  11  Sup.  Ct.  Fed.  Cas.  Xo.  6324  (C.  C.) 

88;  Gill  V.  United  States  (1896),  ^' Lawrenec    v.    Ajlalo    (Eng.) 

160  U.  S.  426;  16  Sup.  Ct.  322;  (1902),  20  T.  L.  R.  42;  1  Ch.  264; 

Bleistein  v.  Donaldson  Lith.  Co.  85L.  T.  605.    Whore  the  publisher 

(1903) ,  188  U.  8.  239;  23  Sup.  Ct.  employed  and  paid  one  to  write  an 

29S;Dielmany.  White  {1900),  102  article  as  part  of  a  work  which 



Although  the  rule  of  law  is  clear,  great  difficulty  has 
confronted  the  courts  in  arriving  at  the  true  relation 

the  publisher  was  producing  at 
his  own  risk  and  expense,  the 
natural  inference  of  fact — no 
agreement  in  writing  or  express 
words  being  necessary  to  the 
assignment  of  copyright — was  in 
the  absence  of  evidence  to  the 
contrary  that  the  publisher  ac- 
quired copyright  in  such  arti- 

Sweet  V.  Benning  (Eng.)  (1855), 
16  C.  B.  459;  24  L.  J.  C.  P. 
175;  1  Jur.  (N.  S.)  543;  3  W.  B. 
519.  Where  the  owner  of  a 
periodical  contracted  with  one 
to  write  an  article  on  the  terms 
that  the  copyright  should  be  the 
property  of  such  proprietor,  such 
terms  were  not  required  to  be 
expressed  but  might  be  implied 
in  fact. 

Hattoji  V.  Kean  (Eng.)  (1859), 

7  C.  B.  (N.  S.)  268;  29  L.  J.  C.  P. 
20;  6  Jur.  (N.  S.)  226;  1  L.  T.  10; 

8  W.  R.  Where  a  manager  of 
a  theatre,  having  designed  to 
bring  out  an  old  play,  with  new 
scenery,  dresses  and  musical  ac- 
companiments, hired  A  to  com- 
pose the  requisite  music,  who  did 
so,  and  A  was  paid  for  his  work, 
the  sole  right  to  the  representa- 
tion or  performance  of  such 
musical  compositions,  as  part  of 

the  whole,  became  thereby  vested 
in  the  former,  wilhout  assignment 
or  the  consent  in  writing  of  A ,  the 
terms  of  the  contract  between 
them  being,  that  the  compositions 
should  become  part  of  the  entire 
dramatic  piece,  and  that  the 
manager  should  have  the  sole 
Uberty  of  representing  and  per- 
forming the  compositions  with 
the  dramatic  piece.  See  also: 
Bijrne  v.  Statist  Co.  (Eng.)  (1914), 
1  K.  B.  622;  Walter  v.  Howe  (Eng.) 
(1881),  50  L.  J.  Ch.  621;  29  W.  R. 
776;  44  L.  T.  727;  Sweet  v.  Evans 
(Eng.)  (1893),  1  Ch.  218;  62 
L.  J.  Ch.  404. 

Dennison  v.  Ashdown  (Eng.) 
(1897),  13  T.  L.  R.  226.  Held 
that  an  assignment  of  the  copy- 
right would  be  presumed  from 
the  conduct  of  the  parties  in 
dealing  with  each  other  for  a  long 
time,  even  though  no  actual  as- 
signment could  be  proved. 

Ward  Lock  &  Co.  v.  Long 
(Eng.)  (1906),  L.  R.  2  Ch.  550; 
75  Law  Journal,  Ch.  732;  95  Law 
Times,  345;  22  T.  L.  R.  798.  An 
agreement  whereby  the  author, 
in  consideration  of  a  sum  of 
money,  undertook  to  compose  a 
book  for  the  publisher,  was  a  suf- 
ficient assignment  of  the  copy- 



existing  between  the  parties.  That  has  been  specially 
the  case  where  the  person  was  engaged  to  perform  serv- 
ices other  than  that  of  writing  and  he  has  merely  as  an 
incident  to  his  employment  composed  literary-  works. 

In  one  instance  where  the  contract  provided  that  the 
plaintiff  should  write  a  play  to  be  produced  at  defendant's 
theatre  and  plaintiff  and  his  wife  were  to  act  therein, 
and  the  profits  to  be  divided  equally  between  the  parties, 
it  was  held  that  the  parties  were  independent  contractors 
and  as  there  had  been  no  express  grant  to  the  defendant 
the  play  belonged  absolutely  to  the  plaintiff. ^^ 

right,  and  was,  as  such,  enforcible 
by  the  publisher. 

See  also  Section  62  of  the 
Copyright  Act  of  1909. 

But  see  in  this  connection 
Hereford  (Bishop)  v.  Griffin  (Eng.) 
(1848),  16  Sim.  190;  17  L.  J.  Ch. 
210;  12  Jur.  255.  Where  one  was 
employed  to  write  an  article  for 
an  encyclopipdia,  the  owner  of 
that  encyclopaedia  might  not 
publish  the  article  in  any  otlior 
form  without  the  author's  con- 
sent, unless  the  article  was  written 
under  the  express  agreement  that 
copyright  in  it  should  vest  in  the 
owner  of  the  encyclopa;dia  for 
all  purposes. 

And  see:  London  University 
Press  V.  University  Tutorial  Press 
(Eng.)  (1916) ,  2  Ch.  601 ;  115  L.  T. 
301;  32  T.  L.  R.  698.  Where 
examiners   getting   up   a   set   of 

examination  papers  were  held 
not  to  be  "employes,"  and 
entitled  to  copyright  therein. 

'^Boucicault  v.  Fox  (1862),  5 
Blatchf.  87.  Plaintiff  who  was 
an  actor  and  author  contracted 
with  defendant  to  write  a  play 
to  be  produced  at  defendant's 
theatre  and  in  which  plaintiff 
was  to  act.  He  acted  in  it  for  a 
week,  then  withdrew,  although 
the  play  was  continued  for  some 
weeks  more.  Plaintiff  took  out 
copyright  of  the  play  in  his  own 
name.  A  few  days  later  he  at- 
tempted to  enjoin  defendant  from 
continuing  to  produce  the  play. 
The  court  said:  "That  agree- 
ment was  that  he  should  wTite 
this  play  and,  perhaps  some 
other  plays,  and  that  he  should 
contribute  his  and  his  wife's 
services   at   the   Winter   Garden 



In  another  case  where  the  contract  provided  that  one 
who  was  engaged  at  a  specified   compensation  should, 

Theatre,  as  long  as  the  plays 
would  run  there,  and  receive  half 
the  profits,  as  a  compensation. 
This  cannot  be  construed  into  a 
contract  conferring  upon  Stuart, 
or  anyone  else,  the  legal  or  equi- 
table title  to  this  drama.  The 
title  to  literary  property  is  in  the 
author  whose  intellect  has  given 
birth  to  the  thoughts  and  wrought 
them  into  a  composition,  unless 
he  has  transferred  that  title,  by 
contract,  to  another.  In  the 
present  case  no  such  contract  is 
proved.  The  most  that  could 
possibly  be  said,  in  regard  to  the 
right  of  Stewart,  or  his  trustee, 
in  the  play,  is,  that  the  arrange- 
ment entitled  them  to  have  it 
performed  at  the  Winter  Garden 
as  long  as  it  would  run.  There  is 
not  the  slightest  foundation  upon 
which  they,  or  either  of  them, 
can  rest  a  claim  to  the  literary 
property  in  the  manuscript.  That 
property  was  in  the  plaintiff, 
subject,  at  most,  to  a  license  or 
privilege  in  favor  of  Stewart  & 
Fields,  to  have  the  piece  per- 
formed at  the  Winter  Garden. 
Whether  the  plaintiff  was  guilty 
of  a  breach  of  that  part  of  his 
agreement  which  l)oun{l  him  to 
bestow   his   own   and    his   wife's 

services,  we  need  not  inquire 
here.  Such  a  breach  if  proved, 
would  not  vest  the  proprietors  of 
the  theatre  with  the  title  to  'The 
Octoroon.'  A.  man's  intellectual 
productions  are  "peculiarly  his  own, 
and  although  they  may  have  been 
brought  forth  by  the  author  while  in 
the  general  employment  of  another, 
yet  he  will  not  be  deemed  to  have 
parted  with  his  right  and  transferred 
it  to  his  employer,  unless  a  valid 
agreement  to  that  effect  is  adduced." 

In  Roberts  v.  Myers  (1860),  20 
Fed.  Gas.  No.  11,906  (C.  C.),  it 
was  held  that  where  an  author 
had  contracted  with  the  proprie- 
tor of  a  theatre  to  write  a  play 
to  be  perfor/ned  at  the  latter's 
theatre,  the  author  was  the 
owner  of  the  copyright. 

"By  this  agreement  Stewart 
(proprietor)  acquired  no  right  or 
interest  in  the  play  to  be  written, 
except  the  privilege  of  having  it 
performed  at  his  theatre.  All 
other  rights  were  retained  by 
the  author." 

In  Eaton  v.  Lake  (Eng.)  (1888), 
59  L.  T.  100;  57  L.  J.  ((J.  B.)  227, 
a  music  conductor,  while  in  the 
employ  of  defendant  for  a  term 
of  years,  had  composed  special 
music  for  tlie  Christmas  holidays. 



among  other  things,  compile  and  prepare  instruction  and 
question  papers,  it  was  held  that  the  literary  works  of 

representation  can  become  vested 
ab  initio  in  an  employer  other 
than  tlie  person  who  has  actually 

wliich  was  performed.  The  dc- 
ferulant  gave  plaintfT  a  week's 
notice  to  quit,  and  then  took  with 
him  the  score  of  the  music  and 
subseciuently  gave  performances 
of  the  same.  Held,  lial)le,  as  the 
music  was  the  iiulcpcndcnt  com- 
position of  the  plaintiff  and  be- 
longed to  him. 

See  also:  Shepherd  v.  Conquest 
(Eng.)  (185G),  17  C.  B.  427;  25  L. 
J.  C.  P.  127;  2  Jur.  N.  S.  236;  4 
W.  R.  283. 

In  this  case  an  author  was  en- 
gaged by  the  owner  of  a  theatre 
to  write  a  dramatic  composition 
and  he  received  therefor  a  speci- 
fied weekly  salary  and  travelling 
expenses.  The  action  was  brought 
by  the  proprietor  of  the  theatre 
for  damages  for  infringement  of 
the  play. 

"The  question  is  whether  the 
plaintiffs  by  the  transaction  be- 
tween them  and  Courtney  (the 
writer)  became  entitled  to  the 
sole  right  of  representation  of 
this  piece  in  London,  so  as  to 
be  able  to  maintain  the  action. 
We  do  not  think  it  necessary  in 
the  present  case  to  express  an>' 
opinion  whether  under  any  cir- 
cumstances, the  copyright  in  a 
literary    work    or    the    right    of 

composed  or  adapted  the  literary 
work.  It  is  enough  to  say  in  the 
present  case  that  no  such  effect 
can  be  produced  where  the  em- 
ployer merely  suggests  the  subject 
and  has  no  .share  in  the  design  or 
execution  of  the  work,  the  whole 
of  which,  so  far  as  anj'  character 
of  originality  belongs  to  it,  flows 
from  the  mind  of  the  person 
employed.  It  appears  to  us  an 
abuse  of  terms  to  .say,  that  in 
such  a  case,  the  employer  is  the 
author  of  a  work  to  which  his 
mind  has  not  contributed  an 
idea,  and  it  is  upon  the  author 
in  the  first  instance  that  the  right 
is  conferred  by  the  statute  which 
creates  it.  We  cannot  bring'  our 
minds  to  any  other  conclusion 
than  that  Courtnej-,  the  person 
who  actually  made  the  adapta- 
tion, though  at  the  suggestion 
of  the  plaintiffs,  acquired  for 
himself,  as  tiie  author  of  the 
adaptation,  and,  so  far  as  that 
adaptation  gives  any  new  charac- 
ter to  the  work,  the  statutory 
riglit  of  representing  it;  and  that 
inasmuch  as  the  plaintiffs  have 
no  assignment  in  writing  of  that 



the  writer  belonged  absolutely  to  the  employer,  the  eon- 
tract  of  employment  being  silent  in  whom  the  hterary 
property  was  to  vest.^^ 

Where  an  author  is  engaged  by  a  motion  picture  pro- 
ducer at  a  weekly,  monthly,  or  yearly  salary  and  the 
author  agrees  to  furnish  literary  work  as  required  by  the 
producer,  the  relationship  of  master  and  servant  is  created, 
and  the  literary  property  belongs  absolutely  to  the  pro- 
ducer unless  by  express  contract  the  parties  thereto  have 
agreed  to  the  contrary.  •^^  Even  where  the  author  receives 
in  addition  to  the  fixed  compensation  a  share  of  the 
profits  the  rule  is  the  same.'*^   The  same  is  true  as  well 

right,   they    cannot   sue   for   an 
infringement  of  it." 

'"  Colliery  Engineer  Co.  v. 
United  Correspondence  Schools  Co. 
(1899),  94  Fed.  (C.  C.)  152.  "It 
seems  equally  clear  that  under 
his  contract,  which  made  it 
Ewald's  duty  while  a  salaried 
emploj'^e  of  complainant,  inter 
alia,  to  compile,  prepare  and 
revise  the  instruction  and  ques- 
tion papers,  the  literary  product 
of  such  work  became  the  property 
of  the  complainant,  which  it  was 
entitled  to  copyright,  and  which, 
when  copyrighted  lOwald  would 
have  no  more  right  than  any 
stranger  to  copy  or  reproduce." 
See  also:  Schumacher  v.  Schwencke 
(1885),  25  Fed.  (C.  C.)  400; 
Frowde  v.  Parish  (Can.)  (1890), 
27  Ont.  526;  Nisbet  v.  Golf  Agency 

(Eng.)  (1907),  23  T.  L.  R.  370; 
Chantrey,  Chantrey  &  Co.  v. 
Dey  (Eng.)  (1912),  28  T.  L.  R. 

^°  Bleistein  v.  Donaldson  Liih. 
Co.  (1903),  188  U.  S.  239;  23 
Sup.  Ct.  298.  Holmes,  J.: 
"There  was  evidence  warrant- 
ing the  inference  that  the  designs 
belonged  to  the  plaintiffs,  they 
having  been  produced  by  persons 
employed  and  paid  l)y  the  plain- 
tiffs in  their  establishment  to 
make  those  very  things.  Gill  v. 
United  States  (1896),  160  U.  S. 
426;  16  Sup.  Ct.  322;  Colliery 
Engineer  Co.  v.  United  Corresp. 
Schools  Co.  (1899),  94  Fed. 
(C.  C.)  152;  Carle  v.  Evans 
(1880),  27  Fed.  (C.  C.)  801." 

'' Mallory  v.  Mnckaye  (1898), 
86  Fed.  (C.  C.)  122. 



when  the  author's  compensation  is  based  not  upon  time, 
but  upon  the  (luantity  of  the  work  i)roduced,  as,  for 
instance,  where  he  is  paid  a  specified  amount  per 
r  ^^  Where  the  relationship  is  one  of  master  and  servant, 
and  the  author  has  not  expressly  reserved  any  rights,  all 
the  literary  products  belong  to  the  producer  as  soon  as 
they  coq;ie  into  existence.  If  the  writer  should  surrepti- 
tiously sell  the  work  to  some  third  party  the  producer  is 
not  deprived  of  such  work,  but  may,  on  the  contrary 
make  use  of  the  same  and  treat  it  as  his  own  property 
in  every  respect.  ^^ 

«Co.c  V.  Cojc  (Eng.)  (1853), 
1  Kq.  Hop.  94;  11  Ilaiv,  118. 

«  T.  H.  Harms  v.  Slcni  (1915), 
222  Fed.  (D.  C.)  581;  aff'd  231 
Fed.  (C.  C.  A.)  645.  Defendants 
agreed  with  one  Romljcrg,  a  com- 
poser, by  which  he  vested  in  thcin 
the  exclusive  pubUsliing  rights  to 
his  music  for  a  term  of  years,  and 
they  agreed  to  do  certain  things 
for  him.  Subsequently  he  re- 
pudiated his  contract,  and 
plaintiffs  claiming  title  to  a  song 
"Oh,  Those  Days,"  composed 
by  Romberg  subsequent  to  his 
agreement  with  defendants, 
sought  to  enjoin  defendants  from 
pul)lishing  it. 

Judge  Learned  Hand  held 
that  the  contract  Ix'tween  Rom- 
berg and  defendants,  while  not 

enforcible  in  equity,  was  valid  at 
law,  and  that  since  defendants 
could  under  that  contract  obtain 
copyright  of  the  song,  even 
though  the  song  was  not  in 
existence  at  the  time  of  the 
making  of  the  contract,  the 
agreement  operated  as  an  execu- 
tory contract  to  assign  the  copy- 
right; that  plaintiffs  having  taken 
with  notice  of  the  agreement 
were  not  entitled  to  injunction. 

Ward  Lock  &  Co.  v.  Long 
(Eng.)  (1906),  75  L.  J.  Ch.  732; 
2  Ch.  550;  95  L.  T.  345;  22  T.  L. 
R.  798.  It  was  here  hold  that 
an  author  could  assign  the  copy- 
right of  a  book  not  yet  in  existence 
and  such  an  a.ssignmcnt  might 
be  in  the  form  of  an  agreement 
to  assign. 



But  a  distinction  must  be  carefully  drawn  between 
works  created  as  an  express  part  of  the  employment  or 
as  an  incident  to  it  and  compositions  made  from  informa- 
tion and  knowledge  acquired  in  the  course  of  employment. 
In  the  former  case  the  work  belongs  to  the  master,  as 
has  akeady  been  stated;  but  in  the  latter,  it  has  been 
held  that  such  literary  property  belongs  to  the  author.  ^^^ 
After  leaving  the  employ  of  the  producer  he  may  develop 
the  ideas  which  he  has  conceived  during  his  employment. 
He  may  even  go  to  the  same  original  sources  of  informa- 
tion, and  may  make  use  in  developing  his  work  of  what- 
ever peculiar  experience  he  may  have  acquired  because 
of  his  former  employment. '^'^ 

**  Peters  v.  Borst  (1889) ,  9  N.  Y. 
Supp.  7S9;  reversed  in  U2  N.  Y. 
62;  36  N.  E.  814,  upon  another 

The  fact  that  one  while  in  the 
employ  of  another  composes  a 
work  from  information  and  knowl- 
edge acquired  in  the  course  of  his 
employment  docs  not  entitle  the 
employer  to  the  literary  property 
unless  there  is  an  express  agree- 
ment to  that  effect. 

In  Colliery  Engineer  Co.  v. 
United  Corresp.  Schools  Co.  (1899) , 
94  Fed.  (C.  C.)  152,  it  was  said: 
"Besides,  it  is  thouf^ht  that, 
although  Ewald  was  not  at  lil)- 
crty  to  reproduce  sucli  of  his 
work  as  had  heen  copyrighted 
by   the  employers   f(jr   whom   it 

was  prepared,  even  by  availing 
of  his  recollection  of  the  contents 
of  the  copyrighted  pamphlets, 
he  was  not  debarred,  after  his 
contract  terminated,  from  mak- 
ing a  new  compilation,  nor  from 
using  tlie  same  original  sources 
of  information,  nor  from  availing 
of  such  information  as  to  the 
needs  of  students  and  the  best 
methods  of  getting  in  mental 
touch  with  them  as  he  may  have 
acquired  while  superintending 
complainant's   school." 

■'^'Colliery  Engineer  Co.  v. 
United  Corresp.  Schools  (1899), 
94  Fed.  (C.  C.)  152.  See  part 
of  opinion  quoted  on  this  page 
under  footnote  44. 


Section  9. — Where  the  motion  picture  material  has  been 
written  by  more  than  one  person. 

Motion  picture  producers  have  frequently  found  them- 
selves involved  in  disputes  because  they  have  purchased 
from  an  autlior  the  motion  picture  rights  to  a  play  or 
other  work  believing,  in  good  faith,  that  the  author  was 
the  sole  owner  of  such  rights,  when  in  fact  two  or  three 
men  had  collaborated  in  its  writing.  Those,  who  have 
not  granted  rights,  come  in  and  claim  their  share  of 
the  profits  or  proceeds,  or  seek  an  injunction  upon  the 
ground  that  the  right  granted  by  their  co-author  will 
destroy  their  interest  in  the  common  work. 

The  motion  picture  producer  is  bound  to  pay  all  the 
royalties  to  the  party  with  whom  he  has  contracted.  If 
he  ignores  the  rights  of  the  other  collaborators,  they 
thi'eaten  to  enjoin  the  picture  or  sue  for  damages.  If  he 
recognizes  their  rights  the  person  with  whom  he  has  con- 
tracted threatens  to  bring  an  action  for  breach  of  con- 
tract. Hence,  to  properly  safeguard  his  own  interest,  he 
must  fu'st  inquire  whether  or  not  those  claiming  to  be 
collaborators  of  the  party  with  whom  he  contracted  are 
such  in  fact. 

The  question  as  to  w'hat  constitutes  co-authorship  has 
been  constantly  before  the  courts  of  this  country  and 
England.  The  test  as  laid  down  by  Copinger  contains 
all  the  elements  which  stamp  a  work  as  the  product  of 
co-authorship.  "  If  there  be  a  joint  co-operation  in  carry- 
ing out  the  same  design,  it  is  not  essential  that  the  execu- 
tion of  the  design  shall  be  equally  divided.  Having  agreed 
to  a  general  design  and  structure,  they  may  divide  their 
parts  and  work  separately.    The  pith  of  the  joint  author- 



ship  consists  of  the  co-operation  in  a  common  design, 
and  whether  this  co-operation  takes  place  subsequently 
to  the  formation  of  the  design  by  the  one,  and  is  varied 
in  conformity  with  the  suggestions  or  views  of  the  other, 
it  has  equally  the  effect  of  creating  a  joint  authorship  as 
if  the  original  design  had  been  their  joint  conception.""® 

*^  Copinger's  Law  of  Copyright 
(4th  Edition),  pages  109,  110. 

A  leading  EngUsh  case  decided 
in  1871,  Levy  v.  Ruthj,  L.  R. 
6  C.  P.  523,  gives  a  number  of 
tests  which  may  be  apphed  with 
practical  results  in  determining 
this  question  at  page  529 : 

"If  two  persons  undertake 
jointly  to  write  a  play,  agreeing 
on  the  general  outline  and  design 
and  sharing  the  labor  of  working 
it  out,  each  would  bo  contribut- 
ing to  the  whole  production  and 
they  might  be  said  to  be  joint 
authors  of  it,  but  to  constitute  a 
joint  authorship  there  must  be 
a  common  design."  And  again 
at  page  530: 

"But  I  take  it  that  if  two  per- 
sons agree  to  write  a  piece,  there 
being  an  original  joint  design 
and  the  co-operation  of  the  two 
in  carrying  out  that  joint  design, 
there  can  be  no  didiculty  in 
saying  they  are  joint  authors  of 
the  work  though  one  may  do  a 
larger  share  than  the  other." 

This  case  has  been  cited  with 

approval  and  followed  in  the 
state  and  federal  courts  of  this 

The  latest  decision  defining 
what  constitutes  co-authorship  is 
Maurel  v.  Smith  (1915),  220  Fed. 
(D.  C.)  195. 

It  was  held  that  the  plaintiff 
who  wrote  the  scenario,  the  de- 
fendant Harry  B.  Smith  who 
composed  the  libretto  and  the 
defendant  Robert  B.  Smith  who 
composed  the  lyrics  of  an  operetta 
were  co-authors. 

Tree  v.  Boivkett  (Eng.)  (1896), 
77  L.  T.  77.  It  was  held  in  this 
case  that  the  adaptor  of  a  play 
who  introduced  into  his  version 
material  alteration  was  an  "au- 
thor of  a  dramatic  piece"  within 
the  dramatic  Copyright  Act  of 

For  cases  where  a  co-worker 
was  held  not  to  be  a  co-author 
see:  Peters  v.  Bnrf<t  (1889),  9 
N.  Y.  Supp.  789;  rovorscd  in  142 
N.  Y.  62;  36  N.  K.  814,  upon  an- 
other ground. 

Where   a  professor   for   tliirty 


In  case  of  collaboration,  where  there  is  no  express 
agreement  to  the  contrary,  the  authors  become  tenants 
in  common  of  the  work.'' 

A  tenant  in  common  of  hterary  property  may  grant  a 
license  to  ro]:)i"()(Iuce  the  common  work  in  motion  pictures 
without  secui'ing  the  consent  of  his  co-tenant.''^   He  can- 

years  had  been  engaged  in  com- 
piling a  work  and  had  called  in  a 
student  to  help  him  tabulate 
tlie  same,  the  hterary  product 
was  held  in  that  case  to  belong 
wholly  to  the  professor  in  the  ab- 
sence of  an  agreement  between 
them,  although  the  student  had 
placed  considcral)lc  labor  upon 
the  work.  Shepherd  v.  Conquest 
(Eng.)  (1856),  17  C.  B.  427;  25 
L.  J.  C.  P.  127;  4  W.  R.  283;  2 
Jur.  (X.  S.)  236;  Lery  v.  Rutlcij 
(Eng.)  (1871),  40  L.  J.  C.  P.  244; 
L.  R.  C.  C.  P.  523;24L.  T.  621; 
19  W.  R.  976. 

*' On  this  proposition  sec: 
Carter  v.  Bailey  (1874),  64  Me. 
458;  Trade  Auxiliary  Co.  v. 
Middlesborough  T.  P.  Ass'n 
(Eng.)  (1888),  58  L.  J.  Ch. 
203;  40  Ch.  D.  425;  60  L. 
T.  681;  37  W.  R.  337.  Three 
proprietors  of  three  periodicals 
employed  one  to  make  cer- 
tain compihitions  for  thom. 

Held  tliat  eacli  proprietor  of 
each  periodical  had  an  equal  in- 
terest in  the  copyriglit.    See  also: 

Powell  V.  Ileail  (Eng.)  (1879), 
12  Ch.  D.  686,  where  it  was 
held  that  registered  owners  of  a 
copyright  took  as  tenants  in 

Barelay  v.  Barclay  (1015),  155 
N.  Y.  Supp.  221;  aff'd  162' A.  D. 
(N.  Y.)  557;  156  N.  Y.  Supp. 
1 1 14.  See  this  for  a  valuable 
discussion  of  rights  of  tenants  in 
common  of  copyrights,  trade- 
marks, etc.,  where  they  are  made 
use  of  in  a  going  business. 

On  the  question  whether  tlie  col- 
laborators are  co-partners  or  joint 
venturers,  Pitts  v.  Hall  (1854), 
3  Bhxtchf.  201;  also  discussion 
and  cases  cited  in  Section   10. 

*»  Nillson  V.  Lawrence  (1912), 
148  (N.  Y.)  A.  D.  678;  133  N.  Y. 
Supp.  293:  "It  is  settled  that 
with  regard  to  property  of  this 
nature  (a  play),  one  tenant  in 
common  has  as  good  a  right  to 
use  it,  or  to  license  third  persons 
to  use  it  as  has  the  other  tenant 
in  common,  and  neither  can  come 
into  a  court  of  equity  and  su^ert 
a  superior  right  unless  it  has  been 



not,  however,  grant  an  exclusive  right,  as  each  has  as 
good  a  right  as  the  other  to  make  use  of  the  common  prop- 

created  bj^  some  contract  modify- 
ing the  rights  which  belong  to 
the  tenants  in  common  as  such. 
[De  Witt  V.  Elmira  Nobles  Mfg. 
Co.  (1876),  66  N.  Y.  459;  Clum  v. 
Brewer  (1855),  2  Curt.  506.]" 

It  was  held  in  this  case,  as  well, 
that  the  complaint  was  bad  be- 
cause it  did  not  allege  that  the 
defendant  had  not  received  a 
license  from  any  co-owTier.  That 
allegation  is  essential  when  there 
is  more  than  one  O'wner. 

Clum  V.  Brewer  (1855),  2 
Curtis  C.  C.  506.  "One  tenant 
in  common  has  as  good  right  to 
use  and  to  license  third  parties 
to  use  the  thing  patented,  as  the 
other  tenant  in  common  has. 
Neither  can  come  into  a  court 
of  equity  and  assert  a  superior 
equity,  unless  it  has  been  created 
by  some  contract  modifying  the 
rights  which  belong  to  them,  as 
tenants  in  common." 

Pusey  V.  Miller  (1894),  61 
Fed.  (C.  C.)  401.  In  this  case 
where  a  patent  was  o\vned  by 
several  parties  the  court  held: 

"Where  a  patent  belongs  to 
several  persons  in  common,  each 
co-owner  can  assign  his  share, 
and  sue  for  an  infringemont,  and 
can  aLso  work  the  patent  himself. 

give  licenses  to  work  it,  and  sue 
for  royalties  payable  to  him  for 
its  use,  and  is  entitled  to  retain 
for  his  own  benefit,  whatever 
profit  he  may  derive  from  the 
working,  although  he  may  be 
liable  to  account  for  what  he 
receives  in  respect  of  the  licenses. 
1  Lindley  Partn.  62;  Sheehan  v. 
Railroad  Co.  (Eng.),  16  Ch.  Div. 
59;  Mathers  v.  Green  (Eng.),  L.  R. 
1  Ch.  App.  29;  Clum  v.  Brewer 
(1855),  2  Curt.  506;  Fed.  Cas.  No. 
2909;  Curran  v.  Burdsall  (1883), 
20  Fed.  (D.  C.)  837;  Aspinwall 
Manufacturing  Co.  v.  Gill  (1887) , 
32  Fed.  (C.  C.)  697;  De  Witt  v. 
Manufacturing  Co.  (1876),  66 
N.  Y.  462;  Gates  v.  Eraser, 
9  111.  App.  628;  Hall,  Pat.  Est. 

Blackledge  v.  Weir  (1901),  108 
Fed.  (C.  C.  A.)  71.  This'  case 
gives  a  careful  review  of  the 
American  and  English  cases  on 
the  sul)ject  and  reaches  the  same 
conclusion  as  the  above  cases. 

Wood,  C.  J.,  said:  "On  prin- 
ciple, therefore,  there  can  be  no 
accountal)ility  on  the  part  of  a 
part  owner  of  an  invention  to 
other  owners  for  profits  made 
by  the  exorcise  of  his  individual 
right,  whether  it  be  in  the  manu- 


erty.'^  Unless,  therefore,  all  the  co-owners  join  in  the 
grant  of  the  motion  picture  rights,  no  exclusive  rights 
can  be  secured.  As  a  practical  matter  it  is,  for  that 
reason,  advisable  to  secure  a  grant  from  all  claim- 
ing an  interest  in  the  motion  picture  rights  in  the 

facture  unci  sale  or  by  granting 
to  others  licenses,  or  by  assigning 
interests  in  tlio  patent.  .  .  .  The 
separate  rights  of  tlic  other 
owners  remain  unaffected.  They 
are  cciually  free  to  use  the  inven- 
tion in  all  l(>gitimate  ways  for 
their  individual  profit.  .  .  .  La- 
lance  &  Grosjean  Mfg.  Co.  v. 
Nafl  Enameling  &  Stamping  Co. 
(1901),  108  Fed.  (C.  C.)  77, 
follows  Blacklcdge  v.  ireiV. 

Herbert  v.  FieUs  (1915),  152 
N.  Y.  Supp.  487.  Plaintiff  sought 
to  enjoin  the  production  in  mo- 
tion pictures  of  a  play  entitled 
"Old  Dutch."  The  libretto  had 
been  written  by  Smith,  the  lyrics 
by  Ilobart  and  the  music  by 
Herbert.  The  defendants  Smith 
and  Fields  licensed  a  motion  pic- 
ture reproduction  of  the  libretto, 
Herbert's  consent  not  having 
been  secured.  Held  that  consent 
of  Herbert  was  unnecessary. 

See  also:  De  Wilt  v.  Elmira 
Nobles  Mfg.  Co.  (1876),  66  N.  Y. 
459;  Klein  v.  Beach  (1910),  232 
Fed.  (D.  C.)  240;  aff'd  239  Fed. 

(C.  C.  A.)  108;  Dunham  v.  The 
Indianapolis  h\  R.  Co.  (1876), 
7  IJissell,  223. 

But  see:  Powell  v.  Head  (Eng.) 
(1879),  48  L.  J.  Ch.  731;  12  Ch.  D. 
686;  41  L.  T.  70.  The  part  owner 
of  a  dramatic  entertainment  was 
here  held  to  be  unable  to  grant  a 
license  for  its  representation  with- 
out the  consent  of  all  the  other 
owners.  Accordingly  where  the 
registered  owner  of  an  undivided 
part  of  the  copyright  of  an  opera 
alone  granted  a  license  for  its 
representation,  in  an  action  by 
the  other  owners  to  recover  a 
penalty  under  3  &  4  Will.  4,  c.  15, 
s.  2:  Held,  that  having  regard  to 
that  act  and  the  act  5  &  6  Vict, 
c.  45,  the  license  was  illegally 
granted,  and  that  the  defendant 
was  liable  to  pay  to  the  plain- 
tiffs one-half  of  the  penalty  fixed 
by  the  statute  for  each  represen- 

*">  Nillson  V.  Laurence  (1912), 
148  (N.  Y.)  A.  D.  678;  133  N.  Y. 
Supp.  293;  Herbert  v.  Fields 
(1915),  152  N.  Y.  Supp.  487. 



This  is  subject  to  the  further  hmitation  that  such 
grant  does  not  injure  or  destroy  the  mterest  of  the  co- 
owner  or  co-owners  in  the  common  property.  ^°  Where 
the  motion  picture  reproduction  is  of  the  same  high  stand- 
ing and  quahty  as  the  work  itself,  it  will  not  ordinarily 
be  regarded  as  injurious  to  or  destructive  of  the  original 
work,  nor  will  the  granting  of  such  rights  amount  to  an 
impairment  of  the  co-tenant's  interest  in  the  common 
property.  •■''^ 

Where,  however,  a  co-owner  permits  the  making  of  an 
insignificant  reproduction,  with  a  poor  cast,  of  a  high- 
class  drama  or  novel,  equity  will,  in  such  cases,  intervene 

^^Osborn  v.  Schenck  (1880),  83 
N.  Y.  200.  In  discussing  the 
question  whether  an  owner  in 
common  of  a  chattel  has  a  remedy 
against  the  other  co-owner  upon 
a  destruction  by  such  other  co- 
owner  of  the  common  property, 
Finch,  J.,  said:  "If  that  posses- 
sion develops  into  a  destruction 
of  the  property  or  the  interest  of 
the  co-tenant,  or  into  such  a 
hostile  appropriation  of  it  as 
excludes  the  possibility  of  bene- 
ficial enjoyment  by  him  or  ends 
in  a  sale  of  the  whole  property 
which  ignores  and  denies  any 
other  right,  then  a  conversion 
is  established  and  trover  may  be 
maintained  against  the  wrong- 
doer." The  court  then  quotes  in 
support  of  this  proposition:  White 
V.  (hborn  (18:J9),  21  Wend.  (N. 

Y.)  72;  Tyler  v.  Taylor  (1850),  8 
Barb.  (N.  Y.)  585;  Van  Doren  v. 
Baity  (1877),  11  Hun  (N.  Y.), 
239;  Delaney  v.  Root,  99  Mass. 
547;  Wheeler  v.  Wheeler  (1851), 
33  Me.  347;  Dyckman  v.  Valiente 
(1870),42N.  Y.  549. 

'^Herbert  v.  Fields  (1915),  152 
N.  Y.  Supp.  487.  "Plaintiff 
urges  that  the  production  of  the 
moving  pictures  to  large  crowds 
at  low  prices  of  admission  'de- 
stroys '  the  work.  While  the  ques- 
tion whether  the  moving  picture 
production  detracts  from  or  adds 
to  its  value  as  a  musical  comedy 
may  be  debatable,  it  seems  per- 
fectly clear  that  any  analogy 
sought  to  be  derived  from  the 
total  physical  destruction  of  an 
article  owned  in  common  is 
utterly  inapplicable." 


on  behalf  of  the  co-tenants  and  enjoin  the  reproduction 
of  the  common  work.'- 

One  of  two  or  more  co-authors  may  sell  or  assign  his 
own  share  or  right  in  the  common  work.^' 

With  respect  to  the  co-authors  themselves,  the  law  has 
not  l)een  dofmitoly  settled  whether  one  must  account  to 
the  other  for  his  share  of  the  profits.  The  rule  seems  to 
be  that  each  may  retain  whatever  moneys  he  may  have 
secured  from  the  exploitation  of  the  motion  picture  rights 
of  the  work  without  accounting  for  any  part  thereof  to 
his  co-authors,-''  unless  by  contract  the  co-authors  have 
agreed  to  the  contrary. 

"//er/ie  v.  Liebler  (1902),  73 
(N.  Y.)  A.  D.  194;  Osborne  v. 
SchcJick  (1880),  83  N.  Y.  200. 

•-^May  V.  Chaffee  (1871),  2 
Dillon  C.  C.  385. 

'*  Carter  v.  Bailey  (1874),  64 
Me.  458.  "In  the  absence  of 
any  contract  modifying  their 
relations,  copyright  i)r()prietors 
are  simply  owners  in  common 
.  .  .  each  owning  a  distinct  but 
undivided  part  which  or  any 
part  of  which  alone  he  can  sell, 
as  in  the  case  of  personal  chat- 

"The  statute  confers  upon  all 
the  owners  full  power,  without 
exacting  any  obligation  in  return 
to  jirint,  publish  and  sell.  .  .  . 
Each  can  exercise  his  own  right 
alone  without  using,  or  receiving 
any  aid  or  benefit  whatever  from 

the  title  or  property  of  the  other. 
But  if  none  be  allowed  to  enjoy 
his  legal  interest  without  the 
con.scnt  of  all,  then  one,  by  with- 
holding his  consent,  might  prac- 
tically destroy  the  value  of  the 
whole  use.  And  a  use  only  upon 
condition  of  an  accounting  for 
profits,  would  compel  a  disuse, 
or  a  risk  of  skill,  capital  and  time 
with  no  right  to  call  for  a  sharing 
of  possible  losses.  When  one 
owner  by  exercising  a  right  ex- 
pressly conferred  upon  him,  in 
nowise  uses  or  molests  the  right, 
title,  possession  or  estate  of  his 
co-owners,  or  hinders  them  from  a 
full  enjoyment  or  sale  and  trans- 
f(>r  of  their  whole  property,  we 
fail  to  perceive  any  {principle  of 
equity  whicli  would  require  liiin 
to  account  therefor.     If  owners 



This  is  of  great  importance  to  the  motion  picture  pro- 
ducer who  has  secured  a  Ucense  from  only  one  of  the  co- 
authors. In  such  case,  assuming  that  the  co-authors 
have  some  agreement  between  themselves  respecting  the 
division  of  moneys  secured  from  the  exploitation  of  the 
work,  the  remedy  of  one  co-author  is  against  the  other; 
and  while  he  may  compel  the  other  to  account,  he  may 
not  compel  the  licensee  to  account  to  him.  In  other 
words,  the  motion  picture  producer  is  accountable  only 

of  such  property  would  have  the 
result  otherwise,  they  must  bring 
it  about  by  contract."  If  he 
takes  "more  than  his  share  of  the 
rents  and  income,  without  the 
consent  of  his  co-owners,"  and 
refuses  "in  a  reasonable  time 
after  demand,  to  pay  such  co- 
tenants  their  share  thereof  .  .  . 
he  will  be  liable  to  an  action  of 
special  assumpsit." 

Drake  v.  Hall  (1911),  220 
Fed.  (C.  C.  A.)  905.  Letters 
patent  were  issued  to  both  par- 
tics  to  the  suit  as  joint  patentees. 
"Under  such  grant  the  rule  is 
elementary  that  each  of  these 
patentees  was  vested  with  an 
undivided  half  interest  therein, 
creating  the  relation  between 
them  of  cotcnants  for  all  benefits 
of  the  ci'^nt,  so  that  each  became 
entitled  to  use  thereof  without 
accountability  to  the  other  co- 
tenant.    No  relation  of  copartner- 

ship is  involved  in  such  owner- 
ship. ..."  To  the  same  effect, 
Central  Brass  v.  Sluber  (1915), 
220  Fed.  (C.  C.  A.)  909;  Puscy  v. 
Miller  (1894),  61  Fed.  (C.  C.) 
401;  Cliim  v.  Breiver  (1855),  2 
Curtis  C.  C.  506;  Nillson  v. 
Lawrence  (1912),  148  (N.  Y.) 
A.  D.  678;  133  N.  Y.  Supp.  293; 
Blackledge  v.  Weir  (1901),  108 
Fed.  (C.  C.  A.)  71;  Lala^ice 
&  Grosjean  Mfg.  Co.  v.  Nat'l 
Enameling  &  Stamping  Co.  (1901), 
108  Fed.  (C.  C.)  77.  But  see 
Klein  v.  Beach  (1916),  232  Fed. 
(D.  C.)  240;  aff'd  (1917)  239  Fed. 
(C.  C.  A.)  108.  "Here  both 
Beach  and  Klein  became  the 
owners  of  Klein's  drama  and 
each  could  then  do  with  it  what 
he  pleased,  with  the  duty  of  ac- 
counting over.  .  .  .  But  in  all 
these  instances  one  would  be 
obliged  to  account  to  the  au- 


to  his  licensor.  •'•'  Nor  is  the  Hccnsee  of  one  (;f  tlie  co- 
authors a  proper  party  to  an  action  brought  })y  one  co- 
author against  the  other,-'"^     It  has  also  been  held  that 

"'^Pusey  V.  Miller  (1894),  61 
Fed.  (C.  C.)  401.  "lu  Dunham 
V.  Railroad  Co.,  2  Ban.  &  A.  327, 
7  Biss.  223,  Fed.  Ca.s.  No.  4151, 
it  was  said  by  Judso  Drummond 
that,  where  a  party  owning  less 
than  the  whole  of  the  thing 
patented  makes  a  grant  or  license 
uiuler  the  patent,  it  would  seem 
tlie  better  rule  to  hold,  if  there 
is  any  hability  at  all,  that  he 
shall  be  answerable  to  the  others, 
rather  than  the  otlier  patentees 
shall  look  to  the  grantee  or  li- 
censee. In  Curran  v.  Burdsall, 
supra  (20  Fed.  837),  the  court 
held  that,  if  one  of  several  joint 
patentees  assigns  to  a  third  party, 
the  estoppel  upon  the  assignor 
must  work  a  license  to  the  as- 
signee to  use  the  patent,  and  the 
joint  owners  of  the  patent  must 
look  to  the  one  who  assigns,  for 
an  accounting.  The  rule  de- 
ducible  from  the  authorities  would 
seem  to  be  that  the  license  of 
one  or  more  of  several  owners 
in  common  of  a  patent  confers  a 
right  as  against  all,  and  that  the 
remedy  of  the  other  tenants  in 
common,  if  thoy  have  any,  is 
by  a  suit  for  an  account  for  what- 

ever may  have  been  received  by 
them.  In  other  words,  the 
licensee  of  a  patent  held  by  two 
or  more  co-owners  is  liable  to  his 
licensor  only,  and  not  to  the  other 
co-owners,  for  license  fees  or 
royalties,  unless  it  is  otherwise 
stipulated  in  the  license." 

Klein  V.  Beach-  (1916),  232 
Fed.  (D.  C.)  240;  alT'd  239  Fed. 
(C.  C.  A.)  108;  Lalnnce  &  Gros- 
jean  Mfg.  Co.  v.  Nat'l  Enameling 
and  Stamping  Co.  (1901),  108 
Fed.  (C.  C.)  77;  BlacUedge  v. 
Weir  (1901),  108  Fed.  (C.  C.  A.) 
71;  De  Witt  v.  Elmira  Xoblcs 
Mfg.  Co.  (1876),  66  X.  Y.  459. 

^o  Dunham  v.  The  Indianapolis 
R.  R.  Co.  (1876),  7  Bissell,  223. 
"What  is  the  position  of  paten- 
tees with  reference  to  their  right 
to  use  the  thing  patented?  The 
patentees  are  tenants  in  common 
of  the  right.  One  of  them  has 
no  superiority  of  right  over  the 
other.  One  of  them  can  manu- 
facture and  use  tlie  article  pat- 
tentod  without  the  consent  of 
the  others;  that  is,  each  has  the 
same  right,  although  one  may 
own  a  greater  share  of  the, thing 
patciitcd   than   the  other.     The 



where  one  co-author  sues  the  licensee  of  the  other  co- 
author, the  bill  of  complaint  is  demurrable." 

In  any  action  brought  by  a  co-author  against  a  motion 
picture  producer  for  an  injunction  or  damages  or  both, 
other  than  an  action  brought  by  a  co-author  against  his 
licensee  for  breach  of  the  contract  between  them,  he  must 
join  as  parties  thereto  all  his  co-authors. ^^    Where  one 

grant  was  in  this  case  to  the  three 
to  use  and  vend  the  improved 
car-brake  shoes,  and  while  it  is 
clear  that  one  of  the  patentees 
cannot  grant  what  does  not 
belong  to  him,  and  if  he  gives  a 
license  or  makes  a  contract  for 
the  use  of  the  thing  patented, 
he  can  only  grant  that  which  he 
has  himself,  and  not  the  rights 
of  the  other  patentees,  still  he 
can  clothe  his  grantee  or  his 
licensee  with  the  same  right  that 
he  has  himself,  namely,  the  right 
to  sell  or  use  the  thing  patented. 
And  it  seems  to  mc  the  better 
rule  is  to  hold,  if  there  is  a  lia- 
bility at  all,  that  where  a  party 
owning  less  than  the  whole  of  a 
thing  patented,  makes  a  grant  or 
a  license,  he  shall  be  answerable 
to  the  others,  rather  than  that 
the  other  patentees  shall  look  to 
the  grantee  or  licensee."  Ptisey 
V.  Miller  (1894),  GI  Fed.  (C.  C.) 

"  Pmey   v.   Miller    (1894),  Gl 
Fed.  (C.  C.)  401. 

^^  Nillson  V.  Lawrence  (1912), 
148  (N.  Y.)  A.  D.  678;  133  N.  Y. 
Supp.  293.  "We  are  also  of  the 
opinion  that  plaintiff's  co-owner 
or  co-owners  should  be  made 
parties  to  the  action.  It  is  plain 
upon  the  face  of  the  complaint 
that  a  complete  determination 
of  the  controversy  cannot  be 
had  in  their  absence." 

Jackson  v.  Moore  (1904),  94 
(N.  Y.)  A.  D.  504;  87  N.  Y. 
Supp.  1101.  "As  a  general  rule 
tenants-in-common  of  personal 
property  must  join  in  bringing 
actions  whether  arising  ex  con- 
tractu or  ex  delicto.  [Hill  v. 
Gibbs,  5  Hil.  (N.  Y.)  56.]"  Aron- 
son  V.  Flcckenstein  (1886),  28 
Fed.  (C.  C.)  75. 

Lauri  v.  Renad  (Rng.)  (1892), 
61  L.  J.  Ch.  580;  (1892),  3  Ch. 
402;  67  L.  T.  275;  40  W.  R.  679. 
It  was  here  held  that  any  one  or 
more  of  tenants  in  common  in  a 
copyright  might  maintain  an 
action  against  a  stranger  for  an 
infringement  of  the  entire  copy- 


co-author  has  granted  a  Hccnse  and  the  Ucensee  has 
breached  his  contract,  the  hcensor  may  maintain  his 
action  agamst  his  Ucensee  without  joining  the  hcensor's 

One  co-author  may  maintain  an  action  against  his  co- 
authors for  infringements  of  the  common  property.^^ 

Section  10. — Nature  of  the  contract  of  co-authorship. 

Contracts  between  co-authors,  and  contracts  Ijctween 
the  manager  or  pubhsher  and  the  co-authors  for  the  crea- 

rif^ht.  See  also:  Stevem  v.  Wildy 
(Eng.)  (1850),  19  L.  J.  Ch. 

In  Tree  v.  Bawkett  (Eng.) 
(1896),  77  L.  T.  77,  tlie  question 
is  discussed  wlietlier  a  licensee 
must  be  made  a  party  to  an 
action  brought  against  an  in- 
fringer Ijy  the  co-authors. 

"  Herring  v.  Gas  Consumers' 
Assoc.  (1878),  3  McCrary  C.  C. 
20G.  The  question  here  presented 
was  whether  a  joint  author  of  a 
patent  could  infringe  upon  the 
patent  owned  jointly  without 
being  liable  to  his  co-owner  for 
the  wrong  done.  The  court  held 
that  he  could  not.  The  court 
sa.vs:  "Can  a  part  owner  infringe 
the  common  patent  and  escape 
all  liability?  If  he  can  it  is  ob- 
vious that,  however  small  his 
aliquot  part,  he  can  make  the 
enjoyment  of  the  patent  value- 

less to  his  joint  owner.  He  has, 
by  virtue  of  the  joint  ownership, 
a  right  to  use  the  patent,  but  he 
has  no  right,  more  than  a  stranger, 
to  infringe  the  same.  If  there  is 
an  infringement  the  right  of 
recovery  is  in  the  party  wronged. 
All  the  joint  owners  should  or- 
dinarily be  parties  plaintiff,  but 
if  the  wrongdoer  is  one  who  is 
guilty  to  the  damage  of  tlie  other 
joint  owner,  the  other  should 
not  be  left  remediless.  As  to 
such  infringement  they  are 
strangers.  .  .  .  Were  this  not  so, 
the  door  would  be  open  to  the 
gravest  frauds  by  one  joint 
owner  against  all  other  joint 
owners.  See  also:  Pitts  v.  Hall 
(1854),  3  Blatchf.  201,  at  page 

Cescinsky  v.  Routlcdge  (Eng.) 
(1916),  85  L.  J.  K.  B.  1504;  115 
L.  T.  191. 



tion  and  production  of  literary  works  are  contracts  for 
personal  services.^"  The  creation  of  a  literary  work  re- 
sembles that  of  a  patentable  invention;*'^  and  since  the 
co-owners  of  the  copyright  as  of  the  patent  are  tenants 
in  common,  there  is  no  partnership  in  the  work,  nor  is 
there  a  joint  venture.^- 

Of  course,  that  relation  may  be  modixled  by  special 
contract,^''  but  any  such  contract  would  have  to  create 

^^Mallonj  V.  Machay  (1899), 
92  Fed.  (C.  C.  A.)  749;  Blakely  v. 
Soma  (1900),  197  Pa.  St.  305;  47 
Atl.  286.     See  also  Section  14. 

^^  Henry  v.  Dick  (1911),  224 
U.  S.  at  page  45;  32  Sup.  Ct.  364; 
Scribner  v.  Slrauss  (1C04),  130 
Fed.  (C.  C.)  389. 

"De  Witt  V.  Elmira  Nobles 
Co.  (1876),  5  Hun,  459;  aff'd 
66  N.  Y.  459.  "These  parties 
are  not  partners  in  the  owner- 
ship of  this  patent.  Beyond 
doubt  they  are  tenants  in  com- 
mon each  owning  the  undivided 

Pitls  V.  Hall  (1854),  3  Blatch. 
201.  "In  the  case  of  joint  pat- 
entees, where  no  agreement  of 
partnership  exists,  the  relation 
of  co-partners  certainly  docs  not 
result  from  their  connection  as 
joint  patentees;  and  when  one 
joint  owner  of  a  patent  transfers 
his  uiidivid(!<l  interest  to  a  stran- 
f^cr,  the  assignee  docs  not  become 

the  partner  of  his  co-proprietor. 
In  both  cases  the  parties  in- 
terested in  the  patent  are  simply 
joint  owners  or  tenants  in  com- 
mon of  the  rights  and  property 
secured  by  the  patent." 

Robinson  on  Patents,  Sec- 
tion 795. 

"And  it  maj^  be  established  as 
an  accepted  doctrine  that  what- 
ever may  be  their  relation  t;) 
the  monopoly  such  joint  owners 
are  not  co-partners  nor  collective 
owners  of  the  invention.  .  .  ." 

And  we  find  this  rule  enun- 
ciated in  Lindley  on  Partnership 
(6th  Ed.)  at  p.  36: 

"Mutual  rights  of  co-owners 
of  a  copyright  have  not  been 
much  discussed;  l)ut  it  has  been 
decided  that  a  license  to  represent 
a  dramatic  entertainment  grante;! 
by  one  only  of  several  co-owners 
of  the  copyriglit  in  it  does  not 
bind  the  other." 

6»  Pitts  V.  Hall  (1854),  3  Blatcii. 


the  mutually  reciprocal  obligations  that  are  concomitant 
with  partnersliip.*^'  Where  the  parties  have  by  special 
contract  created  a  co-partnc^rship,  any  cause  which 
operates  to  dissolve  the  partnership  remits  them  once 
more  to  their  rights  as  co-tenants  in  the  common 

Since  death  works  a  dissolution  of  partnerships,  the 
death  of  one  co-author  would  dissolve  any  relation  of 
partnership  or  joint  venture  created  between  them  by 
special  contract. 

Suppose  that,  in  the  absence  of  any  special  contract 
between  them,  one  co-author  dies  before  the  completion 
of  the  work.  "^Tiat  becomes  of  his  rights  to  the  work? 
To  answer  this  one  must  examine  the  nature  of  their 
contract.  "Wlicn  two  men  agree  between  themselves  to 
write  a  play  or  book,  the  law  spells  out  an  imphcd  cove- 

201;      Pankhurst     v.     Kinsman  of  it.  .  .  ."    Baldwin  y.  Burrows 

(1849),   1  Blatch.  488;  Carter  v.  (1872),   47   N.    Y.    199   at   206. 

BaUci/  (1874),  04  Mo.  4G3.  And  see  Smith  v.  Dunn  (1904), 

'^■'Ilqjc    V.     niford    (1S9G),   2  44  (N.  Y.)  Misc.  288;  89  N.  Y. 

A.  D.  (N.  Y.)346;37N.  Y.Supp.  Supp.  881;  and  Stevens  v.  Mc- 

751;  aff'd  154  N.  Y.  757;  49  N.  E.  Kilbin  (1895),  08  Fed.  (C.  C.  A.) 

1098;  Central  City  Sav.  Bank  v.  406,  the  latter  case  giving  a  most 

Walker    (1876),   66   N.   Y.   424;  detailed    and    logical    discussion 

Burnett    v.    Snyder    (1879),    76  of  the  essential  elements  of  part- 

N.  Y.  344;  London  Assura7ice  Co.  nership. 

V.  Drennen  (1886) ,  1 16  U.  S.  461 ;  <^'- Pankhurst  v.  Kinsman  (1849) , 

6  Sup.  Ct.  442.    "To  constitute  a  1  Blatch.  488.    "The  a.'^signment 

partnorshij)  there  must  be  a  re-  (of  the  interest   in   the   partnor- 

ciprocal  agreement  of  the  parties  ship)   worked   a  dissolution   antl 

not  only  to  unite  their  stock,  but  left  the  parties  interested  in  the 

to  share  in  the  risks  of  profit  or  jxitent    simply    to    tlieir    rights 

loss  by  the  disposition  to  be  made  under  it." 



nant  that  they  will  remain  alive  to  complete  the  work.^^ 
The  contract  is  one  which  involves  elements  of  confidence 
and  skill,  and  each  party  is  entitled  to  the  active  and  con- 
tinued collaboration  of  the  other  up  to  the  completion 
of  the  work.^^  When  death  robs  him  of  that  essential, 
the  contract  is  broken;  it  is  at  an  end.®^  It  cannot  possibly 
survive,  for  obviously  it  cannot  be  carried  out  according 
to  its  terms.  The  surviving  author  is  not  bound  to  con- 
tinue the  work  with  a  substitute  appointed  by  the  per- 
sonal representative  of  the  decedent,  for  no  two  people 
possess  the  same  peculiar  and  valuable  qualities.^^ 

^^Blakehj  v.  Sousa  (1900),  197 
Pa.  St.  305,  at  p.  318;  47  Atl.  286. 
"In  all  contracts  of  this  character 
there  is  written  by  the  law  the 
condition  that  they  are  subject 
to  the  continuance  of  the  hves 
of  the  parties  contracting.  ..." 
See  also:  Taylor  v.  Caldwell 
(Eng.)  (18G3),  3  Best.  &  S.  826; 
Spaulding  v.  Rosa  (1877),  71 
N.  Y.  40;  Baxter  v.  Billings 
(1897),  83  Fed.  (CCA.)  790. 

>'' Spalding  y.  Rosa  (1877),  71 
N.  Y.  40;  Blakehj  v.  Sousa  (1900), 
197  Pa.  St.  305;  47  Atl.  286; 
Sargent  v.  McLeod  (1913),  209 
N.  Y.  360;  103  N.  E.  164;  Baxter 
V.  Billings  (1897),  83  Fed.  (C  C 
A.)  790;  Wolfe  v.  Howes  (1859), 
20  N.  Y.  197. 

<^^Blahely  v.  Sousa  (1900),  197 
Pa.  St.  305;  47  Atl.  286.  "What- 
ever Sousa  may  liavc  done  after 

Blakely's  death  he  did  for  him- 
self. The  term  of  his  employ- 
ment ended  with  the  death  of  his 
employer.  .  .  ."  See  cases  cited 
and  excerpts  in  Section  14, 
page  67,  footnote  6. 

'^Blakely  v.  Soma  (1900),  197 
Pa.  St.  305;  47  Atl.  286.  "It 
would  hardly  be  contended  for  a 
moment  that  if  Sousa  had  dictl 
and  Blakely  had  survived, 
Blakcly  could  have  been  held  t.) 
accept  in  lieu  of  Sousa's  services 
the  services  of  his  legal  represen- 
tatives or  of  anyone  selected  by 

Dickinson  v.  Callahan  (1852), 
19  Pa.  St.  227,  at  234.  "It 
would  seem  absurd  to  say  that 
the  administrator  of  a  physician 
or  author,  or  a  musician  could 
be  compelled  to  perforin  flieir 
professional  engagements  no  mat- 


On  the  otlicr  luuul,  he  is  not  bound  to  throw  nwiiy  the 
product  of  their  joint  labor,  nor  divest  himself  of  the 
knowledge  and  skill  acquired  thereby.  He  may  continue 
the  work  to  its  completion  and  license  third  parties  to 
exploit  the  same. 

In  like  manner  the  manager  or  publisher  who  contracts 
with  two  or  more  co-authors  is  entitled  to  the  joint  product 
of  their  labors.  lie  is  not  bound  to  accept  the  work  of 
one,  but  may  insist  on  genuine  collaboration;  and  where 
one  co-author  dies  before  the  completion  of  the  work, 
the  contract  is  at  an  end.™ 

ter  how  the  contract  might  be 
expressed.  The  idea  is  ludi- 

'°  Baxter  v.  Billings  (1S97), 
83  Fed.  (C.  C.  A.)  790.  This  was 
a  case  where  a  cUent  retained 
two  attorneys  to  prosecute  some 
litigation;  the  attorneys  were 
partners.  Before  the  work  had 
progressed  at  all,  one  of  the  at- 
torneys, Yonley,  died.  Baxter, 
the  survivor,  was  then  asked  to 
complete  the  work  and  he  did 
so,  bringing  it  to  a  successful 
issue.  He  brought  an  action  for 
his  services,  basing  the  action  on 
his  original  contract.  Demurrer 
was  sustained,  the  Circuit  Court 
holding  that:  "An  agreement 
with  a  lawj'cr  to  commence  and 
prosecute  a  suit  is  of  the  same 
character  as  a  contract  with  an 
author   to   write   a   book.     If  Ifie 

author  dies,  or  abandons  his  work 
when  it  is  half  written,  no  sub- 
stitute or  successor  can  complete 
the  book,  and  recover  its  price, 
because  the  literary  ability  of 
the  original  author  for  the  use 
of  which  the  publisher  con- 
tracted, has  not  been,  and  could 
not  be  applied  to  it.  .  .  .  That 
was  a  contract  for  the  services 
of  both  Baxter  and  Yonley. 
Under  that  agreement  their  au- 
thority to  commence  and  prose- 
cute the  suit  was  a  joint  au- 
thority, and  their  duty  was  a 
joint  duty.  A  joint  authority 
conferred  on  two  persons  can 
onlj'  be  exercised  b}'  the  act  of 
both.  An  obligation  to  furnish 
and  apply  to  tlic  conduct  of  a 
lawsuit  the  learning,  ability  and 
experience  of  tivo  particular  at- 
torneys is  not  performed  by  fur- 



The  manager  may,  however,  contract  anew  with  the 
surviving  co-author,  and  a  Hcense  so  given  to  him  is 

What  remedy  may  be  open  to  the  estate  of  the  deceased 
co-author  where  he  dies  before  the  completion  of  the  work 
is  doubtful.'^-  It  is  well  settled  that  each  co-author  may 
exploit  the  work  to  the  fullest  extent,  and  his  right  to  do 
so  should  not  be  curtailed  because  of  the  other's  death — 

nishing    the    services   0/  one   of 
them.  .  .  ." 

Sargent  v.  McLeod  (1913),  209 
X.  Y.  360;  103  N.  E.  164.  In  a 
similar  case  involving  the  death 
of  an  attorney  the  Court  of  Ap- 
peals said:  "It  is  true  that  the 
cessation  in  performance  was 
caused  by  his  death,  but  it  left 
undone  that  which  he  had  agreed 
to  do  precisely  as  though  it  re- 
sulted from  a  physical  or  mental 
incapacitation  at  that  time,  or 
a  capricious  or  unjustifiable 
abandonment  of  the  case.  .  .  . 
Not  only  was  the  perfor- 
mance which  bound  McLeod 
to  pay  the  stipulated  compensa- 
tion incomplete  at  the  death  of 
the  intestate,  hit  the  death  ahro- 
galed  the  contract ^  See  also: 
Morgan  v.  Roberts  (1865),  38  III. 
65;  Moshier  v.  Kilchdl  (1877), 
87  111.  18;  Wright  v.  McCampbell 
(1890),  75  Texas,  644;  13  S.  W. 
293;     Hartford     Fire     Ins.    Co. 

V.    Wilcox    (1870),   57    111.    180. 

71  Yerrington  v.  Greene  (1863) , 
7  R.  I.  594.  "And  if  he  would 
serve  the  administrators  in  wind- 
ing up  the  estate  it  must  be 
under  a  new  contract  with  them, 
and  under  renewed  powers 
granted  by  them.  ..." 

■'^  Wolfe  V.  //otres,  (1859),  20 
N.  Y.  197.  The  concurring 
opinion  of  Ch.  J.  Johnson  ob- 
served "  that  it  was  material  that 
the  defendants  had  received  ac- 
tual benefits  from  the  services 
of  the  plaintiff's  testator  and 
that  quite  a  different  question 
would  be  presented  by  a  case 
where  the  services  actually  ren- 
dered should  prove  valueless, 
as,  e.  g.,  if  one  shoidd  be  retained 
to  cojnpose  an  original  literary 
work  and  having  faUhfidly  cm- 
ployed  himself  in  preparation 
should  die  without  having  com- 
pleted any  work  of  value  to  llie 


if  anytliing  they  should  become  greater,  since  the  survivor 
must  of  necessity  do  more  labor  to  complete  the  work. 

Any  rights  which  would  enure  to  the  estate  of  the  de- 
ceased co-author  must  be  determined  by  reservations 
which  have  been  inserted  in  the  contract  of  the  co-authors. 
If  there  are  no  such  reservations,  his  rights  are  prob- 

The  contract  of  co-authorship  is  not  assignable,  nor  is 
the  contract  with  the  publisher  or  manager.  And  being 
non-assignable,  it  will  not  pass  to  a  trustee  in  bank- 
ruptcy.""' It  is  entire  and  indivisible,  and  calls  for  com- 
plete performance  before  any  rights  under  it  are  en- 

Section  11. — Where  music  has  been  composed  specially 
to  accompany  the  exhibition  of  the  motion  picture. 
There  has  been  a  strong  tendency  of  late  to  provide 

''^Griffith   V,    Tower   Pub.    Co.  being  purely  personal.     In  this 

(Eng.)  (1897) ,  75  L.  T.  R.  (N.  S.)  case  the  licensee  was  a  corpora- 

330;  1  Ch.  21;  Hole  v.  Bradbury  tion. 

(Eng.)  (1S79),  41  L.  T.  II.  153;  12  '•»  Mallory  v.  Mackaye  (1889), 

Ch.  I).  SSG;  Stevens  v.  Benning  92  Fed.  (C.  C.  A.)  749,  at  751. 

(Eng.)  (1854),  24  L.  T.  R.  (0.  S.)  "Such  contracts  are  entire,  not 

l'A;lK.andJ.\G9;Rea(tey.Bcnt-  separable,  and  are  governed  by 

ley   (Eng.)    (1857),   30  L.  T.   R.  the  rule,  applicable  to  all  entire 

(0.  8.)    208;  3   K.   and  J.  271;  contracts,  that  a  breach  by  the 

and  Bartsch  v.  Ilerndon,  Circuit  one    party   a.s   to   any    material 

Ct.   of   Cook   County,   State   of  part   completely   discharges   and 

Illinois,  March   16,  1917,  which  releases    the    other    party    from 

held    that  a  license   to  produce  his  obligations.    It  is  hardly  nec- 

a    play    did    not    to    the  es.sary  to  cite  authorities  on  the 

trustee    where    the    licensee    be-  proposition  that  such  a  contract 

came    insolvent,    tlie  right  to   it  is  entire." 


music,  specially  composed,  to  accompany  the  exhibition 
of  motion  pictures.  This  has  raised  some  very  interesting 
questions  as  to  the  rights  of  the  various  parties  associated 
with  that  kind  of  a  motion  picture. 

In  the  ''Mikado  Case"  '^^  it  was  held  that  where  one 
wrote  the  libretto  of  an  opera  and  another  the  music,  the 
essence  of  the  dramatic  composition  was  in  the  Hbretto, 
stage-business,  dialogue  and  vocal  music  rather  than  in 
the  orchestral  accompaniment.  And  since,  in  that  case, 
Gilbert  &  Sullivan  had  abandoned  their  copyright  to  the 
exclusive  dramatic  representation  of  the  opera  by  con- 
senting to  the  multiplication  and  sale  of  the  libretto  and 
vocal  score  in  England,  they  could  not  enjoin  the  pres- 
entation of  the  opera  here,  the  orchestration  not  being 

Following  the  line  of  reasoning  in  that  case,  it  would 
seepi  that  special  music  composed  for  a  motion  picture, 
is  not  in  itself  a  dramatic  composition.  It  is  incidental  to 
the  picture,  just  as  the  music  of  an  opera  is  incidental  to 
the  play  itself.  It  is  an  integral  and  inseparable  part  of 
the  motion  picture,^^  and  must  stand  or  fall  with  it. 

"The  Mikado  Case  (1885),  25  the  entire  production,  belonged 

Fed.  (C.  C.)  183.    See  also  in  this  to  him,  and  the  plaintiff  had  no 

connection:    Herbert    v.     Fields,  separate   property   ri^ht   therein 

152  N.  Y.  Supp.  487.  and  could  not  restrain  the  de- 

'0  Ilatlon  V.  Kean  (Eng.)  (1859) ,  fendant  from  using  it. 

7  C.  B.  N.  S.  268;  28  L.  J.  C.  P.  WaUcnslcin  v.  Herbert  (Eng.) 
20;  6  Jur.  N.  S.  226;  1  L.  T.  10;  (1867),  15  L.  T.  N.  S.  364;  16 

8  W.  II.  7.  Incidental  music  J^.T.  N.ii.  4r)3;  Herbert  v.  Weber, 
written  for  "Much  Ado  About  N.  Y.  Law  Journal,  Oct.  30, 1907, 
Nothing"  for  defendant  Kean  Judge  Seabury;  MaurcZ  v.  *Smi</i 
who   had   designed   and   created  (1915),  220  Fed.  (D.  C.)  195. 


If  there  is  no  special  contract  between  the  composer 
of  the  music  and  the  writer  of  the  scenario  both  would 
naturally  be  co-authors  in  the  completed  work  and  their 
rights  and  liabilities  would  become  fixed  as  such  J' 

Section  12. — Where  the  motion  picture  producer  has 
not  followed  the  text  of  the  work  upon  which  the 
motion  picture  is  based. 

In  dealing  with  plays,  novels,  short  stories  and  the 
like  the  motion  picture  producer  is  often  confronted  with 
the  prol^lem  of  how  far  he  may  go  in  making  changes  in 
the  work  when  reproducing  the  same  in  motion  pictures. 

The  literary  product  of  an  author  or  playwTight  is  a 
thing  jealously  watched  by  him,  and  one  in  which  the 
common  law  gives  him  certain  well-defined  rights,  even 
where  he  has  parted  title  with  the  work.^^    These  rights 

"  See  Sections  9  and  10.  author  may  write  to  earn  his  liv- 
^*  Clemens  v.  Press  Publishing  ing  and  may  sell  his  literary  pro- 
Co.  (1910),  67  Misc.  (N.  Y.)  183;  ductions,  yet  the  purchaser,  in 
122  N.  Y.  Supp.  206.  "Even  the  absence  of  a  contract  which 
the  matter  of  fact  attitude  of  the  permits  him  so  to  do,  cannot 
law  does  not  require  us  to  con-  make  as  free  a  use  of  them  a.s  he 
sidor  tlie  sale  of  the,  rights  to  a  could  of  the  pork  which  he  pur- 
litorary  production  in  the  same  cha.sed.  ...  If  the  intent  of  the 
way  that  we  would  consider  the  parties  was  that  the  defendant 
sale  of  a  barrel  of  pork.  Con-  should  the  right  to  the 
tracts  are  to  be  so  construed  as  literary  property  and  publisli  it, 
to  give  effect  to  the  intention  of  the  auihor  is  eniitlcd  not  only  to 
the  jiartios.  The  man  who  sells  be  paid  for  his  work  biU  to  have  it 
a  barrel  of  pork  to  another  may  published  in  the  manner  in  which 
pocket  the  purchase  price  and  he  wrote  it.  The  jmrchaser  cannot 
retain  lU)  further  interest  in  what  garble  it  or  put  it  aid  im<ler  an- 
becomes  of  the  pork.     Wliile  an  other  name  tluin  tfie  aullior's,  nor 


may  not  be  violated  even  by  one  who  purchases  the 
product  of  the  author;  and  it  often  becomes  a  serious 
question  to  determine  just  how  far  a  producer  may  go  in 
making  changes  in  the  work  without  invading  the  rights 
of  the  author  or  playwTight. 

It  is  necessary  to  bear  in  mind  that  there  are  two  dis- 
tinctive classes  who  may  be  guilty  of  such  an  invasion  of 
rights.  One  may  be  an  outright  purchaser  of  a  work,  or, 
again,  he  may  be  nothing  more  than  a  mere  licensee. 

In  the  first  case,  that  of  an  outright  purchaser  of  the 
work,  there  was  for  a  long  time  a  conflict  in  the  decisions 
as  to  how  the  author  might  be  protected  in  his  rights. 
The  law  was  plain  that  while  a  purchaser  of  a  work  might 
go  a  great  deal  further  than  a  mere  hcensee  in  making 
changes  in  it,  nevertheless,  he  would  not  be  permitted 
to  mutilate  the  work  or  so  alter  it  as  to  injure  the  reputa- 
tion or  standing  of  the  author.  But  equity  was  reluctant 
to  interfere;  and  after  numerous  decisions  in  England,  it 
was  finally  determined  and  now  seems  to  be  the  law  both 
in  England  and  this  country,  that  a  mutilation  or  radical 
change  in  a  play  by  one  who  has  purchased  it  outright 
amounts  in  essence  to  a  lihelJ^   And  since  a  libel  is  both 

can   he  omit  altogether  the  name  affects  his  reputation  and  stand- 

0/  the  author  unless  his  contract  ing  and  thus  impairs  or  increases 

with  the  latter  -permits  him  so  to  his  future  earning  capacity." 
do.  '^  Atnerican   Law   Book  Co.  v. 

"The  position  of  an  author  is  Chamherlayne    (lOOS),    165    Fed. 

somewhat    akin    to    that    of    an  (C.  C.  A.)  ;il3;  American  Malting 

actor.     The  fact  that  he  is  per-  Co.   v.   Kcitel    (1913),   20!)    Fed. 

mitted  to  have  his  work  published  (C.  C.  A.)   351.     This  case  re- 

undor   his    name   or   to    perform  views   at   length    th(!    history    of 

before    the    public,    necessarily  this  class  of  litigation. 



a  crime  and  a  tort  and  equity  will  not  restrain  the  com- 
mission of  crimes,  the  author  is  relegated  to  the  law  side 
of  the  court  for  damages.**"    But  where,  in  addition  to 

^°  American  Law  Book  Co.  v. 
Chamhcrlayne  (1908),  165  Fed. 
(C.  C.  A.)  313.  The  action  was 
brought  in  equity.  The  court 
held  that  tlie  plaintifT  having 
parted  with  his  title  to  the  manu- 
script should  have  brought  an 
action  for  Ubel. 

"If  he  has  sustained  damage 
because  his  article  has  been  pub- 
lished in  a  mutilated  or  altered 
form  or  with  some  misrepresenta- 
tion as  to  its  authorship,  he  may, 
if  he  can  prove  his  allegations, 
recover  in  an  action  for  libel." 
The  court  then  reversed  the 
judgment  secured  after  trial  of 
the  action. 

KipUixg  V.  Fenno  (1900),  lOG 
Fed.  (C.  C.)  692.  In  this  case 
the  work  having  been  dedicated 
to  the  public  it  was  held  that  the 
autlior  could  not  regulate  by  in- 
junction the  manner  in  which 
his  reprinted  stories  should  be 
grouped  and  entitled. 

Cox  v.  Cox  (Eng.)  (1853),  II 
Hare,  118.  Wlicre  there  was  an 
outright  sale  of  a  manuscript  by 
the  author,  the  purchaser  was  at 
liberty  to  alter  and  deal  with  it 
as  he  thought  proper,  unless  there 

was  a  special  contract  reserving 
to  the  author  any  rights. 

Archhold  v.  Sweet  (Eng.)  (1832), 
1  M.  &  Rob.  62;  5  Car.  &  P.  219. 
The  publisher  of  plaintiff's  work 
was  the  owner  of  the  copyright 

Held  that  plaintifT  could  main- 
tain an  action  at  law  for  any 
injury  sustained  by  him  by  rea- 
son of  the  publication  of  an  in- 
accurate edition  of  his  work 
falsely  purporting  to  have  been 
executed  by  him. 

Lee  v.  Gibbitigs  (Eng.)  (1892), 
67  L.  T.  263.  The  publisher  in 
bringing  out  a  second  edition  of 
a  work  omitted  portions  of  it. 
The  author  .sought  to  enjoin  the 
pubUcation  of  the  book  upon  the 
ground  that  such  publication 
caused  an  injury  to  his  reputa- 

Held  that  plaintiff's  remedy 
was  at  law  for  libel. 

Atigers  v.  Leprohon  (Can.),  22 
Que.  S.  C.  170.  It  was  here  held 
that  where  a  work  was  in  the 
public  domain,  the  publication 
of  the  same  under  a  title  different 
from  that  used  by  the  author  tlid 
not  furnish  ground  for  an  in- 



the  libel,  there  is  the  element  of  "passing  off"  or  fraud 
and  deception  of  the  public,  equity  will  interfere. 

In  the  case  of  a  mere  Ucensee,  the  rule  is  different. 
There  we  have  the  case  of  one  injuring  a  work  of  which  he 
is  not  the  owTier,  or  damaging  the  reputation  of  its  author 
who  is  not  a  stranger  to  him,  but,  on  the  contrary,  be- 
tween whom  and  himself  there  is  some  privity.  In  such 
a  case  equity  will  intervene,  and  injunction  will  issue  to 
restrain  the  irreparable  damage  that  may  be  done.^^ 

junction  particularly  where  both 
the  original  publication  and  the 
later  publication  appeared  under 
a  pseudonjin  and  it  was  not 
proven  that  the  public  knew  the 
author  under  the  assumed  name. 

Ilumphries  v.  Thompson  (Eng.) 
(1908),  Times,  Apr.  29,  30, 
May  1.  Even  though  the  pub- 
lisher owns  the  copyright  in  the 
book,  he  cannot  so  publish  the 
work  as  to  injure  the  reputation 
of  the  author.  If  he  does  so,  he 
may  be  sued  for  libel. 

Crookes  v.  Pctter  (Eng.)  (1860), 
6  Jur.  (N.  S.)  1131;  3  L.  T.  225. 
The  name  of  the  editor  of  a  news- 
paper was  to  appear  on  the  title 
page  and  did  appear  there  for 
some  time.  The  editor  sought 
to  enjoin  the  removal  of  his  name 
from  such  title  page.  It  was 
agreed  not  to  change  the  title. 

Ifcld  that  since  his  name  was 
n(jt  part  of  the  title  he  could  not 

enjoin  its  removal,  but  that  he 
could  maintain  an  action  at  law 
for  any  damages  he  may  have 

See  also:  Carlton  Illustrators  v. 
Coleman  (Eng.)  (1911),  80  L.  J. 
K.  B.  510;  1  K.  B.  771  (1911); 
104  L.  T.  413;  and  Cooper  v. 
Whittingham  (Eng.)  (1880),  49 
L.  J.  Ch.  752;  15  Ch.  D.  501, 

Ridge  v.  English  Illustrated 
Magazine  (Eng.)  (1913),  Times, 
June  13.  The  publication  of  an 
inferior  work  under  the  name  of 
an  author  of  literary  reputation 
when  such  work  was  not  in  fact 
written  by  him  constitutes  an 
actionable  libel  and  plaintiff  is 
not  required  to  prove  malice  or 
actual  damage. 

^^  Royle  V.  Dillingham  (1907), 
53  Misc.  (N.  Y.)  383;  104  N.  Y. 
Supp.  783.  There  the  court  said: 
"Probably   under   the   common- 


Equity  will  not  rostrain  one  from  doing  that  which  ho 
pleases  with  his  own  property;  and  if  in  the  conduct  of  it, 
he  injures  another,  the  latter  must  sue  in  damages  for 
the  tort.  But  where  one  attempts  as  in  the  case  of  a 
mere  hcensee,  to  injure  property  in  which  another  has 
the  title,  equity  will  enjoin  such  acts. 

The  fact  that  a  work  is  produced  in  serial  form  gives 
the  producer  no  gi'oater  rights  with  respect  to  changes  or 
mutilation  than  where  the  entire  work  is  brought  out 
at  one  time.^- 

The  author  has  the  strict  right  to  presen,'e  the  identity 
of  his  creation.^^    So  it  would  seem  that  if  a  producer  of 

law  and  certainly  under  his  con- 
tract, the  plaintiff  is  within  his 
rislits  in  invoking  equital)le  juris- 
diction. Whether  we  have  gone 
quite  so  far  as  other  countries 
whose  literary  history  is  longer 
in  the  jirotection  of  literary 
property,  may  be  open  to  doubt; 
but  there  is  as  there  should  be,  a 
growing  tendency  to  bestow  on 
authors  that  full  measure  of  pro- 
tection wliich  their  unicjue  prop- 
erty requires.  Whether  the  work 
is  great  or  trivial,  original  or 
adapted,  the  principle  should  be 
the  same  so  long  as  the  work  is 
the  author's  own.  The  court 
will  not  apply  canons  of  literary 
taste,  but  leave  that  to  the  public. 
The  tendency  of  our  autliorities 
is  shown  by  such  cases  as  Clem- 
niens  v.   Belford,   14  Fed.   728; 

Ilarte  v.  De  Wilt,  1  Cent.  Law 
Journal,  360. 

Gilbert  V.  Workman  et  al.  (Eng.) 
(1910),  Times,  Jan.  19th.  In- 
junction was  granted  ex  parte  re- 
straining introduction  of  a  song  in 
an  operetta,  which  was  not  a  part 

*-  Humphries  v.  Thompson 
(Eng.)  (1908), Times,  Apr.  29,30, 
May  1. 

"  De  Bekker  v.  Slokes  Co.  ( 1 9 1 6) , 
168  A.  D.  (N.  Y.)  452;  157  N.  Y. 
Supp.  576.  The  plaintiff  sold  to 
defendant  the  exclusive  right  to 
publish  the  work,  prepared  by 
plaintiff,  and  entitled  "Stokes 
Encyclopedia  of  Music."  The 
defendant,  after  selling  the  book 
in  the  regular  way,  authorized 
the  defendant  the  University 
Company   to   publish   the   book 



pictures  took  two  or  more  separate  scenarios  written  by 
two  or  more  people,  or  even  by  the  same  person,  and 
together  with  eight  other  volumes      notice.      The    court    granted    a 

under  the  title  "Encyclopedia  of 
Music."  Defendants  were  en- 

Drummond  v.  Altemus  (1894), 
60  Fed.  (C.  C.)  338.  Where 
there  were  published  a  few  of  a 
series  of  lectures  given  by  plain- 
tiff which  lectures  had  been 
dedicated  to  the  public,  the  lec- 
tures having  been  incorrectly 
copied  and  the  book  purported 
to  contain  the  entire  series  of 
lectures,  it  was  held  that  an  in- 
junction would  issue  to  enjoin 
such  publication. 

Hart  V.  De  Witt,  1  Cent.  Law  J. 
360.  "I  think  that  the  plaintiff 
has  such  an  interest  in  his  name 
and  reputation  as  an  author  as 
entitles  him  to  invoke  the  aid  of 
equity  in  restraining  the  defend- 
ant from  falsely  representing 
that  a  literary  production  pub- 
lished and  sold  by  the  defendant, 
is  the  work  of  the  plaintiff." 

In  this  case  the  defendant  pub- 
lished a  book  several  chapters 
of  which  had  been  written  by  the 
plaintiff  and  other  parts  by  an- 
other. The  authorship  of  the 
entire  book  wa.s  ascribofl  to  plain- 
tiff, altliough  at  the  end  of  the 
book  there  was  an  explanatory 

temporary  nijunction. 

Excerpt  from  Editorial  of  the 
N.  Y.  Law  Journal  of  March  21, 
1916,  in  discussing  Alorang  v. 
Le  Sueur  (Can.)  (1911),  45  Can. 
Sup.  Ct.  95. 

The  learned  Chief  Justice 
speaks  of  the  absence  of  English 
authorities,  but  in  a  note  to  the 
story  in  Case  and  Comment  it  is 
stated  that  "in  England  ap- 
parently the  same  rule  has  been 
laid  down  in  an  unreported  case," 
citing  The  Writer  (Boston,  vol. 
26,  No.  10,  p.  150).  Substanti- 
ally in  accord  with  these  decisions 
was  one  of  the  German  Imperial 
Court,  the  substance  of  which 
was  stated  in  the  Harvard  Law 
Review  for  May,  1913,  as  follows: 

"A  Lady  who  owned  a  private 
residence  in  Berlin,  of  which  she 
occupied  the  upper  floor,  while 
the  lower  floor  was  let  to  a  tenant, 
desired  to  have  the  vestibule 
of  the  house  decorated  by  a 
fresco  painting  and  engaged  a 
well  known  artist  to  do  the  work. 
The  painting  when  finished  rep- 
resented an  island  with  some 
nude  figures  of  sirens.  To  these 
nudes  the  lady  who  had  ordered 
the  painting  took  exception,  and 



combined  them  all  into  one  picture,  he  would  \)o  distinctly 
violating  the  right  of  separate  identity,  and  would  be 
liable  in  damages  and  injunction. 

^\^lc^e  in  the  case  of  the  granting  of  a  license,  the  li- 
censee agi'ees  that  no  changes  or  alterations  shall  be 
made,  or  no  artist  shall  be  engaged  without  securing  the 
consent  of  the  licensor,  a  violation  of  such  agreement  will 
be  enjoined. ^^ 

she  had  another  artist  overpaint 
the  figures  so  that  they  appeared 
a-s  draped.  The  first  artist  con- 
tended that  this  change  violated 
rights  which  as  an  artist  he  had 
in  the  integrity  of  his  work,  and 
although  the  owner  covered  the 
altered  portion  of  the  fresco  by  a 
curtain,  lie  was  not  satisfied, 
but  brought  an  action  demanding 
the  restoration  of  the  painting  to 
its  original  condition,  or  failing 
in  that  doniaiid,  its  entire  with- 
drawal from  whore  it  might  be 
visible  to  strangers.  The  lower 
court  granted  the  latter  prayers, 
and  the  i)laintiff  appealed.  Held, 
that  the  overpainted  drapery 
must  be  removed.  (79  Entsche- 
idungen  des  Reichsgerichts,  397, 
German  Imperial  Court,   1912). 

The  court  said  that  the  prin- 
ciple of  the  decision  must  be 
deduced  from  the  relative  right.s 
of  the  owners,  of  the  |Mil)lic,  of 
the  artist  to  his  reputation,  and 

perliaps  from  a  right  of  person- 
ality, which,  even  if  not  recog- 
nized as  a  distinct  generic  right, 
may  yet  be  enforced  with  regard 
to  particular  interests. 

Although  the  German  law  is 
codified,  there  is  no  explicit  pro- 
vision applicable  to  the  particular 
controversy  involved.  It  is  sig- 
nificant that  rights  of  control  of  a 
manuscript  or  a  painting  have 
been  upheld  both  in  code  and 
common-law  jurisdictions.  A 
result  similar  to  that  reached 
in  these  cases  ought  to  be  worked 
out  cverj^iere  upon  some  theory, 
no  matter  what  the  general  form 
or  particular  provisions  of  the 
local  law  maj'  be.  The  remarks 
of  Chief  Justice  Fitspatrick  in 
the  Supreme  Court  of  Canada 
(supra)  upon  the  unicjue  and 
complex  character  of  literary 
property  may  be  taken  a.s  a  guide 
in  effectuating  justice  in  any  con- 
troversy of  this  nature. 

^*Royle  v.  Dillingham  (1007), 



An  author  may  enjoin  the  exhibition  of  a  motion  pic- 
ture which  is  purported  to  have  been  based  upon  his  work 
when  not  so  in  fact.^^    And  it  would  seem  that  this  right 

53  Misc.  (N.  Y.)  383;  104  N.  Y. 
Supp.  783.  It  was  here  held  that 
a  producer  of  a  play  who  agreed 
that  no  additions  or  alterations 
would  be  made  without  the  con- 
sent of  the  author  would  be  en- 
joined from  making  any  unau- 
thorized change  or  modifications 
in  the  text  or  structure  of  the 

Loicenfeld  v.  Curtis  (1896),  72 
Fed.  (C.  C.)  105.  Plaintiff  made 
an  agreement  with  defendant 
giving  defendant  a  license  to 
produce  a  play  entitled  "Gentle- 
man Joe."  The  contract  pro- 
vided : 

1.  That  no  alterations  or  ad- 
ditions were  to  be  made  without 
the  written  consent  of  the  plain- 

2.  That  the  names  of  the  ar- 
tists who  were  to  be  engaged  were 
to  be  submitted  for  the  approval 
of  the  plaintiff. 

Upon  motion  for  an  injunc- 
tion it  was  held  with  respect  to 
(1),  "Additions  to  the  play  .  .  . 
are  wholly  unwarranted,  except 
upon  the  written  consent  of  tlic 
complainant.  Defendant  was  en- 
titled to  produce  the  play  only 

in  strict  conformity  to  the  manu- 
script and  score."  The  court 
also  intimated  that  any  altera- 
tions of  the  play  would  have 
violated  the  terms  of  the  con- 
tract; with  respect  to  (2)  that 
failure  to  submit  names  of  per- 
formers to  plaintiff  was  a  breach 
which  entitled  plaintiff  to  an  in- 

85  Clemens  v.  Beford  (1883),  14 
Fed.  (C.  C.)  728.  "An  author  of 
acquired  reputation  and  perhaps, 
a  person  who  has  not  obtained 
any  standing  before  the  public 
as  a  writer,  may  restrain  another 
from  the  publication  of  literary 
matter  purporting  to  have  been 
written  by  him,  but  which,  in 
fact,  was  never  so  written.  In 
other  words  no  person  has  the 
right  to  hold  another  out  to  the 
world  as  the  author  of  literary 
matter  which  he  never  wrote; 
and  the  same  would  undoubtedly 
apply  in  favor  of  a  person  known 
to  the  public  under  a  nom  de 
plume,  because  no  one  has  the 
right  either  expresslj'  or  by  iin- 
l)lication  falsely  or  untruly  to 
charge  another  with  the  composi- 
tion or  authorship  of  a  literary 



may  be  exercised  by  the  executor  of  a  deceased  author.*' 
An  author's  name  has  a  property  value.  Its  use  amounts 
to  the  taking  of  another's  property.  Where  the  work  is 
in  the  public  domain,  anyone  using  such  work  has  tlie 
right  to  use  the  name  of  the  author  in  connecti(jn  there- 

Where  he  has  applied  a  nom  de  plume  to  his  work  the 
nom  de  plume  or  the  true  name  of  the  author  may  be 

production  which  he  did  not 

Robertson  v.  Berry  (1878),  50 
Md.  591.  In  the  application  of 
his  name  to  a  work  the  autlior 
has  a  property  right  whicli  a 
court  of  c(iuity  will  protect 
against  such  a  use  or  imitation 
as  may  cause  damage  to  the 
author's  property. 

Lancia  v.  Grccnbcrg  (Eng.) 
(1908),  24  T.  L.  R.  441.  One 
who  contributes  to  the  plaintiff's 
publication  under  a  nom  de  plume 
may  after  dismissal  restrain  the 
use  of  such  nom  de  plume,  as  she 
has  an  exclusive  property  right 

Collins  V.  Public  Ledger  Co., 
Court  of  Common  Pleas,  In 
Equity,  Philadelphia,  Pa.,  June 
Term,  1917,  No.  2272;  July  17, 
1917,  Barratt,  P.  J.  Plaintiff 
had  conducted  a  column  in  de- 
fendant's newspajier  under  the 
signature  of  "Ciirard."  After 
leaving    its    employ,    defendant 

continued  to  edit  the  column 
under  the  same  name.  Defend- 
ant was  enjoined  from  so  doing. 
Suburlxin  Press  v.  Phila.  Subur- 
ban Piihl.  Co.  (1910),  227  Pa.  St. 
148;  75  Atl.  1037. 

8«  Wood  V.  Butterworth  (Eng.) 
(1901),  Times,  Dec.  23.  An 
executor  of  a  deceased  author 
was  granted  an  injunction  ex 
parte  enjoining  one  from  falsely 
imputing  tlie  autliorship  of  a 
work  to  plaintiff's  testator. 

*^  Edison  v.  Polyjorvi  Mfg.  Co. 
(1907),  67  Atl.  392;  lolanthe  Case 
(1883),  15  Fed.  (C.  C.)  439;  Daly 
V.  Wabash  (1899),  40  A.  D. 
(N.  Y.)  220;  57  N.  Y.  Supp. 

See  in  this  connection:  Rex  v. 
Daoust  (Can.),  28  D.  L.  R.  293; 
20  Can.  Cr.  Cas.  09;  49  Que.  S.  C. 
65.  Held  a  criminal  offense  to 
suppress  the  name  of  a  play- 
wright, even  though  he  was  a 
foreigner,  wIutc  his  country  was  a 
party  to  the  Berne  convention. 



used  at  the  option  of  the  motion  picture  producer  in  con- 
nection with  the  use  of  the  work.^^  Where  the  motion 
picture  producer  is  the  owner  of  the  work  or  where  the 
Hterary  product  is  in  the  pubhc  domain,  it  would  seem 
that  he  is  not  bound  to  use  the  name  of  the  author  in 
connection  with  the  exploitation  of  the  work;  that  is,  he 
is  not  required  to  use  the  name  of  the  author,  but,  on  the 
other  hand  he  may  not  use  any  other  name.^' 

88  Clemens  v.  Beljord  (1883),  14 
Fed.  (C.  C.)  728.  "It  does  not 
seem  to  me  that  an  author  or 
■ftTiter  has  or  can  acquire  any 
better  or  higher  right  in  a  nom  de 
plume  or  assumed  name  than  he 
has  in  his  Christian  or  baptismal 
name.  "When  a  person  enters 
the  field  of  authorship  he  can 
secure  to  himself  the  exclusive 
right  to  his  writings  by  a  copy- 
right under  the  laws  of  the 
United  States.  If  he  publishes 
anything  of  wliich  he  is  the  au- 
thor or  compiler,  either  under  his 
own  proper  name  or  an  assumed 
name,  without  protecting  it  by 
copyright,  it  becomes  public  prop- 
erty, and  any  person  who  chooses 
to  do  so  has  the  right  to  repub- 
lish it  and  to  state  the  name  of 
the  author  in  such  form  in  the 
book,  either  upon  the  title  page 
or  otherwise,  as  to  show  who  was 
the  writer  or  author  thereof. 

""  Jones  V.  American  Law  Book 
Co.  (1908),  125  A.  D.  (N.  Y.)  519; 

109  N.  Y.  Supp.  706.  Plaintiff 
agreed  to  write  legal  articles  for 
defendant  for  one  year  at  a  speci- 
fied rate  of  payment  per  page. 
Contract  provided  that  work 
was  to  belong  absolutely  to  de- 
fendant, that  defendant  could 
make  any  and  all  charges  it  de- 
sired. It  was  held  that  in  view 
of  the  contract  made,  plaintiff 
could  not  insist  upon  having  his 
name  printed  as  author  of  the 

Mallory  v.  Mackaye  (1898),  86 
Fed.  (C.  C.)  122;  modified  in  92 
Fed.  (C.  C.  A.)  749,  on  another 
point.  Plaintiff  engaged  defend- 
ant for  a  specified  period  and 
agreed  to  pay  him  a  stipulated 
salary  as  well  as  a  share  of  the 
profits.  Defendant  agreed  that 
title  in  defendant's  productions 
should  belong  to  plaintiff.  It  was 
held  that  a  patent  for  a  revolving 
stage  secured  by  defendant  and 
a  play  written  l)y  him  Ix'longcd 
to   plaintiff;    that   omitting    the 



Section  13. — Criticism  of  the  work. 

"\Mieii  an  author  places  his  book  before  the  puljlic  he 
invites  criticism;  and,  however  hostile  that  criticism  may 
be,  and  however  mucli  damage  it  may  cause  him  .  ,  . 
the  critic  is  not  liable  in  an  action  for  libel,  provided  he 
makes  no  misstatement  of  any  material  facts  contained 
in  the  writing,  and  does  not  attack  the  character  of  the 
author."  »" 

The  critic  may  use  ridicule.^ ^    He  may  even  underrate 

name  of  the  author  from  ad- 
vertisements did  not  justify  de- 
fendant in  himself  usnig  the  play. 

Booth  V.  Lloyd  (Eng.)  (1910), 
26  T.  L.  R.  549.  Plaintiff  was 
owner  of  the  copyright  of  a  musi- 
cal composition,  lie  granted  the 
right  to  a  tliird  person  to  "print, 
publish  and  sell."  Held  that  the 
licensee  was  not  bound  to  print 
and  publish  the  musical  composi- 
tion in  his  name. 

But  see  Clemens  v.  Press  Pub- 
lishing Co.  (1910),  67  ^lisc. 
(N.  Y.)  183;  122  X.  Y.  Supp.  206. 

'"  DowUng  v.  Lii'ing.stone  (1S90), 
108  Mich.  321;  06  X.  W.  225. 
Plaintiff  published  a  book  en- 
titled "The  Wage  Worker's 
Remedy."  The  defendants  in 
their  newspaper  severely  criti- 
cised the  composition  as  well  as 
the  theories  of  the  author  but 
made  no  personal  attack  on  him. 
•See  also:  Campbell  v.  SpoUiswood 

(Eng.),  3  F.  &  F.  421 ;  Morrison  v. 
Belcher  (Eng.),  3  F.  &  F.  614; 
Belknapp  v.  Ball  (1890),  83  Mich. 
589;  47  X.  W.  674;  Walker  v. 
Tribime  (1887),  29  Fed.  (C.  C.) 

Slewart  v.  Reuters  Telegram 
(Eng.),  1911,  Times,  Feb.  1. 
Statements  made  concerning  a 
pubhcation  which  were  untrue 
were  held  to  be  not  libellous  per  se 
xchen  made  in  good  faith. 

Thomas  v.  Bradbury  (Eng.) 
(1905),  Times,  July  5-6-7;  aff'd 
95  L.  T.  23.  Plaintiff  sued  al- 
leging that  defendant,  publishers 
of  Punch,  had  criticised  his  work 
so  harshly  as  to  evince  malice. 
He  received  a  verdict  of  £300. 

8'  Dou'ling  wLiringstonc  (1896), 
108  Mich.  321;  66  X.  W.  225. 
"One  wTitcr  in  exposing  the 
follies  and  errors  of  another  may 
make  use  of  ridicule,  however 
poignant,  and  if  loss  occurs  it  is 



the  author's  talents.^-  But 
work  ^^  or  uses  the  criticism 
character  or  private  Hfe  of 

damnum  absque  injuria.  Can  v. 
Hood,  1  Campb.  354;  Strauss  v. 
Francis,  4  Fost.  &  F.  1114."  To 
the  same  effect:  Soane  v.  Knight, 
Moody  &  M.  74;  Thompson  v. 
Shackell,  Moody  &  M.  187,  Swan 
V.  Tappaji,  5  Cush.  105;  Gott  v. 
Pulsifcr,  122  Mass.  235. 

Walker  v.  Tribune  (1887),  29 
Fed.  (C.  C.)  827.  An  attorney 
who  had  written  a  pamphlet  was 
referred  to  as  a  "crank."  Held 
not  libelous  per  se. 

92  Naulty  V.  Bulletin  Co.  (1903), 
206  Pa.  St.  128;  55  Atl.  862.  A 
statement  respecting  a  writer  on 
historical  subjects  that  he  was 
not  qualified  as  an  expert  in  his- 
torical matters  and  that  in  send- 
ing certain  letters  and  in  acting 
as  an  officer  of  a  historical  so- 
ciety he  was  guilty  of  fraud  and 
deception,  was  held  not  to  be 
libelous  as  it  did  not  impugn 
the  good  faith  of  plaintiff,  but 
merely  took  issue  as  to  the  cor- 
rectness of  the  facts  set  forth  in 
the  letters  sent  out  by  plaintiff. 

"  Carr  v.7/oofZ(Eng.) ,  1  Campb. 
355.  Where  the  critic  introduced 
fiction  in  order  to  distort  and 
make  ridiculous  the  work,  he 
was   held   liable   for   libel.     See 

where  the  critic  distorts  the 
as  a  means  of  attacking  the 
the  author,^^  he  is  guilty  of 
also:  Tabart  v.  Tepper  (Eng.), 
1  Campb.  351 ;  Whistler  v.  Ruskin 
(Eng.)  (1878),  Times,  Nov.  26, 

^^  Cooper  V.  Stone  (1840),  2t 
Wend.  (N.  Y.)  434.  Criticism  of 
the  work  of  an  author  is  permis- 
sible, but  the  critic  may  not 
attack  the  moral  character  of 
the  author  in  his  review;  where 
he  does  so  it  becomes  a  question 
of  good  faith,  and  when  the  critic 
raises  the  question  of  privilege, 
it  is  for  the  jury  to  pass  on. 

"I  do  not  speak  of  criticism 
upon  the  works  of  an  author  in 
the  abstract;  for  this  I  admit  no 
action  can  lie.  Certainly  not, 
unless  the  criticism  be  grossly 
false  and  work  a  special  damage 
to  the  proprietor  of  the  book  at 
which  the  strictures  are  levelled." 

Croasdale  v.  Tantum  (1880),  6 
Houst.  (Del.)  60.  A  reference  to 
an  editor  of  a  newspaper  as  a"  mis- 
erable specimen  of  humanity"  was 
held  to  be  libelous  in  connection 
with  a  statement  that  defendant 
was  obliged  to  write  the  article  to 
apprise  the  public  of  an  attempt 
to  destroy  the  character  of  de- 

Spooner  v.  Daniels  (1854),  Fed. 



libel.  That  is  true  even  where  he  attempts  to  justify 
his  act  upon  the  ground  that  it  was  a  mere  jcst."^  An 
oral  imputation  of  insanity,  however,  was  not  held 
slanderous  per  se.®^ 

Cas.  No.  13,244a  (C.C).  Where 
an  author  was  referred  to  as  a 
fraud,  humbug  and  swindler, 
t!;e  words  were  licid  to  be  Hbclous. 

Reade  v.  Sweetzer  (18G9),  G  Al)b. 
Pr.  (X.  S.)  (X.Y.)  9  (note).  "The 
critic  may  say  what  he  pleases  of 
the  literary  merits  or  demerits 
of  the  published  products  of  an 
author;  but  that  with  respect  to 
his  personal  rights  relating  to 
his  reputation  the  critic  has 
no  more  privilege  than  any  other 
person  in  assuming  the  business 
of  criticism." 

The  court  then  holds  that  ac- 
cusing an  author  of  writing  mat- 
ter of  a  demoralizing  effect  is 
libelous.  See  also:  Kennedy  v. 
Press  Puhl.  Co.  (1886),  41  Hun 
(X.  Y.),  422;  Harl  v.  Toxvnsend 
(1884),  67  How.  Pr.  (X.  Y.)  88; 
Archhold  V.  Sweet  (Eng.)  (1832), 
5  Car.  &  P.  219;  Macleod  v. 
Wakchj  (Eng.)  (18:31), 3  Can.  &  P. 
311;  Graham  v.  McKimm  (Can.), 
19  Ont.  475;  Browning  v.  Van 
Rensselaer  (1899),  97  Fed.  531 
(C.  C);  Eraser  v.  Berkeley  (Eng.) 
(1833),  7  C.  &P.  621. 

"  Triggs  v.  Su7i  Printing  &  Pid)- 
lishing  Assn.   (1904),  179   X.  Y. 

144;  71  X.  E.  739.  "A  publica- 
tion, which  in  effect  represent.s 
an  author  as  a  presumptuous 
literary  freak  and  ridicules  his 
private  life,  is  not  within  the 
bounds  of  fair  and  honest  literary 
criticism,  is  libelous  per  sc,  and 
cannot  be  justified  upon  the 
ground  that  it  was  a  mere  jest, 
when  it  is  perfectly  manifest 
from  the  language  employed  that 
it  is  an  attack  upon  his  reputa- 
tion or  business."  The  court 
cites  Cooper  v.  Stone,  24  Wend. 
(X.  Y.)  434;  Mattice  v.  Wilcox, 
71  Hun  (X.  Y.),  485;  24  N.  Y. 
Supp.  lOGO;  aff'd  147  X.  Y.  624; 
42  X.  E.  270;  Ilanneton  v.  Eno,  81 
N.  Y.  116. 

'«  "George,  the  Count  Joannes" 
V.  Burt  (1863),  88  Mass.  236. 
An  oral  imputation  of  insanity 
is  not  libelous  per  se. 

See  in  this  connection:  Smith 
V.  Clinton  (Eng.)  (1908),  Times, 
Oct.  19-29.  The  printer  is  liable 
for  libelous  matter  printed  by 
him,  and  he  cannot  hold  the 
proprietor  of  the  work  to  account 
to  him,  even  though  it  was  ex- 
pressly contracted  that  lie  be 



Miscellaneous  Questions 

Sec.  14.  On  the  question  whether  the  contract  existing  between  the 
parties  is  a  personal  one. 

15.  Where  the  contract  contains  a  negative  covenant. 

16.  Where  the  work  is  to  be  to  the  satisfaction  of  the  producer. 

17.  Where  the  contract  provides  for  the  writing  of  a  libelous, 

immoral  or  seditious  work. 

18.  Where  the  license  granted  is  a  sole  and  exclusive  one. 

19.  Where  the  contract  contains  limitations  as  to  methods  of 


20.  Where  the  work  is  to  be  produced  at  a  definite  time. 

21.  Where  the  payment  to  the  author  is  based  upon  a  percentage 

of  the  gross  receipts  or  net  profits. 

22.  Where  the  amount  to  be  paid  to  the  author  is  guaranteed. 

23.  Where  the  payment  to  the  author  is  a  stipulated  amount 

per  performance  or  per  period. 

24.  Where  the  amount  of  damages  in  the  event  of  a  breach  is 


25.  Where  the  contract  provides  for  a  forfeiture  upon  failure  to 

pay  the  royalties  due. 

26.  Where  the  manuscript  is  lost  or  converted  after  submission 

to  the  producer. 

27.  Where  the  work  is  secured  by  means  of  a  prize  contest. 

28.  On  the  question  whether  an  outright  purchaser  is  required 

to  reproduce  the  work. 
20.  On  the  (lucstion  whctluir  the  producer  is  entitled  to  a  refund 
of  advance  payment. 


30.  On  the  question  whether  the  contract  may   be  rescinded 

where  the  author  made  a  poor  bargain  or  where  fraud  Is 

31.  On  the  question  whether  the  contract  may  be  rescinded  where 

the  producer  made  a  poor  bargain  or  where  fraud  is  in- 

32.  On  the  question  whether  a  contract  to  write  will  be  specifically 


33.  On  the  question  whether  the  licensor  may  maintain  an  action 

against  third  parties. 

34.  On  tlie  question  whether  courts  grant  injunctions  pendente 

lite  more  readily  in  actions  of  this  nature. 

Section  14. — On  the  question  whether  the  contract  exist- 
ing between  the  parties  is  a  personal  one. 
It  has  been  generally  settled  that  contracts  between 
authors  or  proprietors  of  literary  works  with  producers 
are  personal  and  are  not  assignable  by  either  party  with- 
out the  consent  of  the  other.  ^    Thus,  where  a  hccnse  is 

1  "Contracts  in  which  the  per-  N.  Y.  Supp.  277;  N.  Y.  Phono- 

sonal  acts  and  qualities  of  one  of  graph  Co.  v.  Davega  (1908),  127 

the   contracting   parties   form   a  A.   D.   (X.  Y.)   222;   Hi   N.  Y. 

material  ingredient  are,  in  general  Supp.    363;    Booth    v.    Richards 

not   a.ssignable."      2    Chitty    on  (Eng.)    (1910),  Times,  July   14; 

Contracts,  nth  Am.  Ed.,  p.  13G3.  Hole  v.  Bradbury  (Eng.)  (1879), 

To  the  same  effect:  Mallonj  v.  12    Ch.    D.    886;   41    L.   T.    R. 

MacA-o// (1899),  92  Fed.  (CCA.)  153;  Stevens  v.   Benning   (Eng.) 

1\<^-  BlakeUj  V.  Soma  {\mi),Vdl  (1854),    1  K.  «&  J.   169;   24   L. 

Pa.  St.  305;  47  Atl.  280;  .S/oa/i.  V.  T.    R.    (0.    S.)    154;    Rcade    v. 

WilUamii    (1891),    138    111.    43;  /^cu/Z^y  (Eng.)  (1857),  3  K.  &  J. 

27  N.  E.  531;  Woosler  v.  Crane  271;  30  L.  T.    R.   (O.  S.)  268; 

(1907),  66   Atl.    1093;  Oliver  v.  Grijfith  v.  Tower  Publ.  Co.  (Eng.) 

Rumford  (1883),   109  U.  S.   75;  (1897),  1  Ch.  21;  75  L.  T.   R. 

3  Sup.  Ct.  1.61;  Tuttlc  v.  La  Dow  (N.  S.)  330. 
(1889),  54  Hun  (X.  Y.),  149;  7         See  in  this  connection:  Stand- 


given  to  produce  a  play,  a  subletting  of  the  play  to  some 
third  party  has  been  held  to  be  a  breach  of  the  contract. ^ 

In  the  production  of  a  play,  which  means  the  visualizing 
of  the  thoughts  of  the  author  employed  in  the  manuscript, 
the  greatest  skill  and  ability  are  necessary.  The  success 
of  the  play  is  dependent  to  a  large  extent  upon  its  proper 
casting,  the  selection  of  artists  possessing  the  peculiar 
and  particular  talents  necessary  to  properly  interpret 
the  parts  and  to  portray  the  characters  as  conceived 
by  the  author,  the  planning  of  appropriate  backgrounds, 
sceneries,  costumes,  paraphernalia  and  other  accessories, 
the  ability  to  secure  bookings  in  desirable  territory  and 
in  the  best  theatres.  An  element  of  confidence  largely 
enters  because  the  author  is  dependent  for  his  compensa- 
tion upon  the  royalties  he  receives  from  the  manager 
for  the  performances.  The  manager  has  the  exclusive 
handling  of  the  funds  and  the  making  up  of  the  daily 
and  weekly  receipts  and  a  dishonest  manager  can  easily 
defraud  the  author  by  means  of  false  returns  as  well  as  a 
refusal  to  pay  the  royalties. 

If  the  producer  becomes  a  bankrupt  either  through  vol- 

ard  Am.  Publ.  Co.  v.  Methodist  To    the   same   effect:    Reade   v. 

Concern  (1898),  33  A.  D.  (N.  Y.)  Bentley  (Eng.)  (1857),  4  K.  &  J. 

409;  54  N.  Y.  Supp.  55.  656;    Griffith    v.    Tower    (Eng.) 

^Herne  v.   Licbler   (1902),  73  (1897),  1  Ch.  21. 

A.   D.    (N.   Y.)    194;  76   N.   Y.  But  when  the  contract  granted 

Supp.    762.     Where   the   Ucense  a,  license  to  "  produce  or  have  pro- 

was  granted  to  defendants  and  duced"  a  production  in  "stock" 

the  defendants  agreed  to  produce  it  was  held  not  a  breach  of  the 

the   phiy,  the  subletting  of  the  contract.       Peple    v.    Comstock, 

play  to  stock  companies  was  hold  N.   Y.    Law   Journal,  April    27, 

to  be  a  breach  of  the  contract.  1909. 


untary  or  involuntary  proceedings,  the  right  to  produce  the 
play  docs  not  pass  to  the  trustee  in  bankruptcy,  but  on 
the  contrary,  reverts  to  the  licensor.'  Upon  bankruptcy 
the  author  is  reheved  of  his  obligation  to  complete  the 
work.'  Wliere  the  firm  of  the  producer  is  changed  sub- 
sequent to  the  making  of  the  contract  the  license  ter- 
minates.^ Being  a  contract  for  personal  services  the 
death  of  either  party  terminates  the  contract.® 

»  Walermati  v.  Shipman  (1893), 
55  Fed.  (C.  C.  A.)  9S2.  A  license 
granting  the  sole  right  to  manu- 
facture a  patented  article  was 
personal  and  did  not  pass  to  a 
receiver  appointed  in  proceed- 
ings supplementarj'  to  execution. 
Barhch  v.  Hermlon,  Circuit  Court 
of  Cook  County,  Illinois,  March 

Lucas  V.  Moncricff  (Eng.) 
(1905),  21  T.  L.  R.  683.  Plain- 
tiff ^^Tote  a  book  which  was  to  be 
published  by  defendant,  it  being 
agreed  that  the  profits  were  to 
be  shared  equally.  After  publica- 
tion of  several  editions  of  the 
book,  defendant  became  bank- 
rupt. Held:  that  the  agreement 
as  to  sharing  profits  did  not  vest 
the  copyright  in  the  book  in  the 
defendant;  and  that  the  contract 
was  a  personal  one  and  that  there- 
fore defendant's  trustee  had  no 
right  to  reprint  and  publish  the 
book,    (iiijjitk  v.  Tower  Publ.  Co. 

(Eng.)  (1897),75L.  T.  R.  (N.  S). 

See  in  this  connection:  In  re 
Grant  Richards  (Eng.)  (1907), 
Times,  March  19;  L.  R.  2  K.  B. 
33;  76  L.  J.  K.  B.  643;  96  L.  T. 
712.  Where  the  publisher  had 
secured  the  copyright  and  subse- 
quently became  bankrupt,  the 
author's  only  remedy  was  to  file 
his  claim  for  royalties  against  the 

*  Gibson  v.  Carruthcrs  Exchequer 
(Eng.)  (1841),  8  M.  &  W.  321. 

*  Stevens  v.  Bcnning  (Eng.) 
(1854),  6  DeG.  M.  &  G.  223; 
3  Eq.  Rep.  457;  24  L.  J.  Ch.  153; 
1  Jur.  (X.  S.)  74;  3  W.  R.  149. 
Where  an  author  made  a  con- 
tract with  a  publisher,  and  the 
firm  of  the  publisher  was  subse- 
quently changed,  held  that  the 
contract  was  of  a  personal  nature 
and  not  a.ssignable  by  either  party 
without  tlio  other's  consent. 

*  Yerrington  v.   Greene   (1863), 



A  distinction  must  be  carefully  drawn  between  a  license 
and  an  absolute  assignment  of  a  right.     When  there  is 

7  R.  I.  593.  Chief  Justice  Ames 
speaking  of  this  class  of  contracts 
says:  "The  most  obvious  cases 
are  the  death  of  the  party  to  a 
contract  of  marriage  before  the 
time  fixed  by  it  for  the  marriage; 
the  death  of  an  author  or  artist 
before  the  time  contracted  for  the 
finishing  and  delivery  of  the  book, 
picture,  statue  or  other  work  of 
art.  .  .  ." 

Harrison  v.  Conlan  (1865),  92 
Mass.  85.  Speaking  of  the  rule 
that  a  contract  ordinarily  sur- 
vives death,  the  court  said:  "But 
there  is  an  exception  to  this 
rule  when  the  contract  of  the 
deceased  requires  from  its  na- 
ture, or  for  other  reason  to  be 
performed  by  him  or  to  him  per- 
sonally; as,  if  he  engages  to  com- 
pose a  book  or  to  make  a  paint- 
ing or  engraving,  or  engages  to 
pay  another  during  a  specified 
time  for  attending  on  his  person 
and  for  no  other  service,  .  .  .  his 
death  ends  such  contracts.  ..." 

Martin  v.  Hunt  (1861),  83 
Mass.  418.  "There  is  a  well- 
known  class  of  cases  where  the 
rule  is  different,  and  the  death 
of  one  of  the  parties  discharges 
the  contract  or  excuses  its  further 
performance.     Such  is  the  case 

where  the  engagement  is  of  a 
strictly  personal  character,  re- 
quiring personal  skill  or  ca- 
pacity; as  a  contract  to  write 
books  for  a  piiblisJier  or  a  contract 
by  a  physician  to  cure  a  par- 
ticular disease  and  the  like." 
See  also:  Tasker  v.  Shepherd 
(Eng.),  6  Hurlst.  &  W.  575. 

Williams  on  Executors,  4th 
American  Edition,  p.  1467. 

Lorillard  v.  Clyde  (1894),  142 
N.  Y.  456;  37  N.  E.  489;  Green- 
burg  v.  Early  (1893),  4  Misc. 
(N.  Y.)  99;  23  N.  Y.  Supp.  1009, 
which  hold  that  contracts  for 
personal  services  are  abrogated 
by  the  death  of  the  employer  or 
the  employe. 

Marshal  v.  Broadhurst  (Eng.) 
(1831),  1  Tyr.  349;  1  C.  &  J.  403; 
9  L.  J.  (0.  S.)  Ex.  105.  A  con- 
tract by  an  author  to  write  a 
book  is  purely  personal  and  if 
he  dies  before  its  completion  his 
estate  is  not  liable. 

Gibson  V.  Carruthers  (Eng.) 
(1841),  8  M.  &  W.  343;  11  L.  J. 
Ex.  138.  Where  the  author  be- 
comes bankrui)t  while  under  con- 
tract to  write  a  book,  his  trustee 
has  no  power  to  compel  the  com- 
pletion of  the  work.  '^ 


an  assignment,  the  right  of  the  producer  to  re-assign  is 

Section   15. — Where  the  contract  contains  a  negative 
A  negative  covenant  in  a  contract  for  the  \\Titing  of 
literary  works  is  enforceable  in  equity,^  in   the   same 

'  Heap  V.  Ilarllcy  (Eng.)  (1889), 
42  Ch.  D.  4G1.  See  this  case  for 
a  detailed  and  careful  discussion 
of  the  differences  in  rights  con- 
ferred upon  a  licensee  and  those 
conferred  upon  an  assignee. 

The  case  holds  that  the  funda- 
mental difference  lies  in  the  fact 
that  in  the  case  of  a  licensee  (even 
an  exclusive  licensee)  no  right  in 
the  property  itself  is  given  but  a 
personal  license  to  do  an  act 
which  otherwise  would  be  un- 
lawful, while  an  assignment  con- 
stitutes a  grant  conveying  among 
other  things  the  right  to  re-assign. 
See  also:  Landckcr  v.  Wolff 
(Eng.)  (1907),  52  Sol.  J.  45;  Tree 
V.  Bowkelt  (Eng.)  (1896),  74 
L.  T.  77;  Lucas  v.  Cooke  (Eng.) 
(1880),  13  Ch.  D.  872;  Lacy  v. 
Toole  (Eng.)  (1SG7),  15  L.  T.  512. 

^  Stern  v.  Laemmle  (1911),  71 
Misc.  (N.  Y.)  2G2;  133  N.  Y. 
Supp.  1082.  One  Solman  con- 
tracted with  plaintiffs  whereby 
they  acquired  the  exclusive  right 
to  every  song  composed  by  him 

during  a  specified  period.  Solman 
composed  a  song  and  defendants 
copyrighted  and  published  it. 
It  was  held  that  plaintiffs  could 
enjoin  defendants  and  secure 
accounting  of  defendants'  profits 
upon  the  ground  that  under  the 
contract  with  Solman  the  song  be- 
longed to  plaintiffs;  that  plain- 
tiffs could  bring  an  action  in  the 
state  court  to  protect  their  com- 
mon-law rights  and  that  defend- 
ants obtained  nothing  by  their  ap- 
plicationfor  copyright  registration. 
Wahrheit  v.  The  Day  Pub.  Co., 
N.  Y.  Law  Journal,  Jan.  6,  1917. 
This  was  a  motion  for  a  tempo- 
rary injunction.  One  Trufanoff 
was  the  author  of  a  certain  manu- 
script. He  made  a  contract  with 
plaintiff  for  the  publication  of 
the  same  in  its  newspaper,  for 
wliich  plaintiff  paid  him.  There- 
after Trufanoff  made  some  slight 
changes  in  the  manuscript  and 
contracted  for  the  publication  of 
the  same  in  defendant's  news- 
paper.    The  motion  was  granted. 



manner  as  one  contained  in  the  contract  of  an  actor.  The 
same  rules  with  respect  to  the  unique  and  extraordinary- 
character  of  the  services  contracted  to  be  rendered,  mu- 
tuaHty  of  obhgations  and  remedies  apply.^  The  third 
party  producing  the  work  will  be  enjoined  and  will  be 
compelled  to  account  for  his  profits  derived  from  the 
exploitation  of  the  work.^" 

enjoining  the  defendant  news- 
paper from  publishing  such  manu- 
script and  Trufanoff  from  mak- 
ing any  other  disposition  of  the 

Morris  v.  Colman  (Eng.)  (1812), 
18  Vesey,  437.  Lord  Eldon  held 
that  a  contract  by  a  dramatist 
with  the  proprietors  of  a  theatre 
not  to  write  plays  for  any  other 
theatre  was  enforcible. 

Stiff  V.  Cassdl  (Eng.),  2  Jurist 
N.  S.  348.  Defendant  Smith 
made  an  agreement  with  plaintiff 
to  write  tales  for  the  plaintiff's 
journal,  and  a  negative  covenant 
to  write  for  no  one  else.  Smith 
then  attempted  to  write  for 
Cassell.  Held  that  such  a  con- 
tract was  enforcible. 

Ward  V.  Bceton  (Eng.)  (1874), 
L.  R.  19  Eq.  207;  23  W.  R.  533. 
PlaintifY  purchased  the  copyright 
of  a  book  from  defendant.  De- 
fendant agreed  to  give  his  whole 
time  to  i)laintiff's  service  and 
not  to  engage  in  any  otlier  busi- 

ness. Defendant  was  restrained 
from  advertising  a  rival  work. 

See  in  this  connection:  Gabriel 
V.  McCabe  (1896),  74  Fed.  (C.  C.) 
743.  Discusses  the  right  of  the 
licensee  to  publish  the  work  in 
an  abridged  form,  and  holds 
that  he  had  made  no  unfair  use 
of  his  license. 

9  See  Sections  30  and  37.  Tarns 
V.  Witmark  (1900),  30  Misc. 
(N.  Y.)  293;  63  N.  Y.  Supp.  721; 
aff'd  48  A.  D.  (N.  Y.)  632;  63 
N.  Y.  Supp.  1117.  It  was  held 
that  it  was  sufficient  in  an  action 
for  infringement  of  property 
rights  in  a  work  where  the  plain- 
tiff derived  title  from  some  third 
party  to  allege  in  the  complaint 
that  plaintiff  duly  acquired  and 
became  the  e.xclusive  owner  of 
the  work.  The  courts  will  not 
treat  such  an  allegation  as  a 
conclusion  of  law. 

^•^  Stern  v.  Lnemmle  (1911),  74 
Misc.  (N.  Y.)  262;  133  N.  Y. 
Supp.  1082. 


Section  16. — Where  the  work  is  to  be  to  the  satisfaction 
of  the  producer. 

Where  the  author  agrees  to  write  a  work  which  shall 
be  satisfactory  to  the  jiroducer,  the  same  rules  of  law- 
apply  which  have  been  enunciated  by  the  courts  in  the 
case  of  ''satisfaction"  contracts  between  actors  and 

Section  17. — Where  the  contract  provides  for  the  writing 
of  a  Hbelous,  immoral  or  seditious  work. 
Neither  the  producer  nor  the  author  may  maintain  an 
action  upon  any  contract  which  provides  for  the  writing 
and  reproduction  of  a  work  which  is  to  contain  a  crim- 
inal libel,  immoral  or  seditious  matter.^- 

Section  18. — Where  the  license  granted  is  a  sole  and 
exclusive  one. 

Unless  it  is  expressly  agreed  that  the  license  granted 
shall  be  a  sole  and  exclusive  one,  the  licensor  may  grant 
licenses  to  produce  the  same  play  for  the  same  period 
and  within  the  same  territory  to  any  number  of  persons.'^ 

"See  Section  38.  ^^ Apthorpe    v.    XcviUc    (Eng.) 

Haven    v.    RimseU    (1895),   34  (1907),  Times,  May  31. 
N.     Y.     Supp.     292.       Plaintiff  '' I  I  art  v.  Cor  t  (Idl'S),  SS  Mhc. 

agreed  to  write  a  play  for  defend-  (X.  Y.)  44;  144  X.  Y.  Supp.  627. 
ants    "if    it    proved   satisfactory  Willis    v.     Tibhals    (1871),    1 

to  tliem."    //('/(/  that  as  the  con-  Jones  &  Spencer  (X.  Y.),  220.    A 

tract  involved  fancy,  taste  and  license  given   to  a  pubhsher  to 

judgment,  actual  satisfaction  must  print  and  vend  a  book  upon  a 

be   proved   as  a  condition   prec-  royalty  basis  is  not  a  solo  and 

cdent    to    recovery.  exclusive  license  unless  the  con- 
tract expressly  so  provides. 



But  where  the  Ucense  is  exclusive,  the  licensee  may  en- 
join any  and  all  third  parties  claiming  through  his  li- 
censor,^'* as  well  as  the  licensor  himself, ^^  from  producing 
the  work  in  the  territory  for  which  the  sole  license  has 
been  granted  to  him. 

Section  19. — Where  the  contract  contains  limitations  as 
to  methods  of  exploitation. 
If  the  contract  provides  that  the  motion  picture  shall 
be  produced  in  a  special  manner  only,  as,  where  the  pro- 
ducer agrees  that  the  film  shall  not  be  shown  without 
the  playing  of  certain  music  written  specially  for  use 
with  the  exhibition  of  the  film,  or  that  the  film  shall  be 
shown  in  none  but  first-class  theatres,  the  licensor  can 

'<  Widmer  v.  Thompson  (1878), 
56  How.  Pr.  (N.  Y.)  91.  Where 
defendant   by   agreement   trans- 

ferred to  plaintiff  the  sole  right 
to  produce  the  play  in  America, 
the  contract  providing  that  unless 
the  play  was  performed  at  least 
fifty  times  within  one  year  from 
the  date  of  the  agreement  and 
forty  times  yearly  thereafter 
the  rights  of  the  j)laintiff  would 
cease,  at  the  option  of  the  de- 
fendant, and  providing  further 
that  upon  the  payment  of  a 
specified  sum  within  a  j'ear  there 
was  to  be  an  absolute  convey- 
ance to  plaintiff,  it  was  held: 

(1)  Plaintiff  succeeded  to  all 
of  defendant's  rights  in  such 
play  in  America. 

(2)  Plaintiff  could  enjoin  de- 
fendant or  any  party  claim 
through  him  from  producing  the 

Barnett  v.  Q.  &  C.  Co.  (1915), 
226  Fed.  (C.  C.  A.)  935.  An 
"exclusive  license  under  a  patent 
is  a  unique  property  right,  against 
the  destruction  of  which  a  court 
of  equity  will  give  protection  by 
injunctive  relief." 

^5  Watcr77wnv.  Shipman  (1893), 
55  Fed.  (C.  C.  A.)  982.  An  ex- 
clusive licensee  of  a  patent  may 
maintain  an  action  under  the 
patent  laws  where  the  patentee  is 
guilty  of  infringement  and  the 
licensee  may  join  all  other  parties 
who  have  combined  with  his 
patentee  to  infringe  his  rights. 

WORK    TO    BE    PRODUCED    AT   A    DEFINITE   TIME  75 

restrain  any  violation  of  such  covenants.""'  But  in  such 
case  the  Hcensor  does  not  reserve  to  himself  tlic  right 
to  have  a  film  of  his  work  produced  without  the  special 
music  or  in  other  than  first-class  theatres.  ^^ 

Section  20. — Where  the  work  is  to  be  produced  at  a 
definite  time. 

Where  an  author  agrees  to  furnish  the  producer  with 
a  play  or  scenario  on  or  before  a  specified  date,  his  failure 
to  do  so  renders  him  liable  for  whatever  damages  have 
been  sustained  by  the  producer,   and  the  producer  is 

i«//gme  V.  Liebler  (1902),  73 
A.  D.  (N.  Y.)  194;  7G  N.  Y.  Supp. 
702.  An  injunction  will  be 
granted  to  enjoin  the  production 
of  a  play  in  stock  by  stock  coin- 
panics  where  the  contract  pro- 
vides that  the  play  shall  be  pro- 
duced in  none  but  first-class 

See  in  this  connection:  Peple  v. 
Comstock,  N.  Y.  Law  Journal, 
April  27,  1909.  Bischoff,  J.: 
"So  far  as  a  breach  is  alleged  in 
the  original  complaint,  the  al- 
legation proceeds  upon  a  con- 
struction of  the  contract  which 
would  limit  the  defendant's  rights 
in  the  play  to  a  production  by 
himself  as  manager,  the  plaiu- 
tilT's  assertion  being  that  a 
breach  occurred  through  the  de- 
fendant's permitting  the  use  of 
the    play  by   'stock'   companies 

managed  by  other  persons.  Upon 
this  question  I  am  of  the  opinion 
that  the  contract  does  not  bear 
the  construction  for  which  the 
plaintiff  contends.  Express  per- 
mission was  given  the  defendant 
'to  produce  or  have  produced' 
this  dramatic  composition,  and 
the  words  'have  produced'  ob- 
viously extend  to  a  production 
at  the  hands  of  others  for  the 
defendant's  benefit." 

"  FrohmaiiY.  Filch  (1914),  10 1 
A.  D.  (X.  Y.)  231;  149  N.  Y. 
Supp.  033.  Where  the  licensor 
grants  an  exclusive  right  to  pro- 
duce a  play  in  first-class  theatres 
and  in  a  first-class  manner,  he 
does  not  reserve  to  himself  the 
right  to  produce  such  play  in 
second-class  theatres  and  in  a 
second-class  manner. 



entitled  to  a  return  of  all  moneys  advanced  to  the  author 
under  the  contract.  ^^ 

The  producer,  however,  may  waive  his  right  to  have 
the  finished  work  dehvered  upon  the  specified  day,  and 
after  such  waiver  he  may  not  maintain  an  action  for 
breach  of  contract  before  the  expiration  of  a  reasonable 
time  after  the  giving  of  notice  to  the  author  to  deUver 
the  manuscript.  ^^ 

Where  an  author  is  engaged  to  write  a  play  or  scenario 
and  before  the  completion  of  the  work  the  producer 
abandons  the  project  of  making  a  motion  picture  from 
such  play  or  scenario,  the  author  may  maintain  an  action 

^8  Yeamans  v.  Tannehill  (1891), 
15  N.  Y.  Supp.  958.  Under  a 
contract  by  which  defendant 
agreed  to  write  a  play  for  plain- 
tiffs, it  was  shown  that  the  play 
was  not  completed  in  time,  and 
plaintiffs  brought  their  action 
to  recover  back  the  moneys  ad- 
vanced under  the  contract.  Ver- 
dict in  their  favor  sustained. 

Ward  Lock  &  Co.  v.  Long  (Eng.) 
(1906),75L.  J.  Ch.  732;95L.  T. 
345;  22  T.  L.  R.  798;  2  Ch.  550. 
Here  the  author  furnished  a  story 
of  70,000  words,  instead  of  one 
of  80,000  words  as  agreed.  Held 
a  breach  of  the  contract. 

Gale  V.  Leckie  (Eng.)  (1817),  2 
Stark,  107;  19  R.  R.  692.  Here 
the  author  refused  to  supply  a 
manuscript  after  a  part  of  the 

work  had  been  printed.  It  was 
held  that  the  pubUsher  might 
maintain  an  action  against  him. 
'^Mann  v.  Maurel  (1911),  126 
N.  Y.  Supp.  731.  Defendant 
agreed  to  furnish  plaintiff  with 
a  complete  manuscript  in  a  speci- 
fied month.  Contract  further 
provided  that  any  extension 
granted  to  defendant  to  deliver 
the  play  should  extend  the  time 
for  its  production  for  a  propor- 
tionate period.  Parties  negotiated 
respecting  the  play  after  the  time 
fixed  for  delivery  of  the  manu- 
script. It  was  held  that  plaintiff 
could  not  maintain  an  action  for 
breach  before  the  expiration  of  a 
reasonable  time  after  the  giving 
of  notice  to  defendant  to  deliver 
the  finished  manuscript. 


for  the  reasonable  value  of  his  services  without  delivering 
or  tendering  the  manuscript.-" 

If  the  contract  provides  for  the  writing  of  a  number  of 
plays,  and  the  contract  is  not  severable,  and  before  the 
completion  of  the  entire  number  of  plays,  the  producer 
commits  some  breach  of  the  contract,  the  author  may 
maintain  an  action  for  breach  of  the  entire  contract.-^ 

Section  21. — Where  the  payment  to  the  author  is  based 
upon  a  percentage   of  the  gross  receipts   or  net 
We  may  have  the  situation  where  a  work  is  sold  for 

reproduction  in  motion  pictures  upon  condition  that  the 

^'^Planche  v.  Colburn  (Eng.) 
(1831),  1  M.  &  Scott,  51;  8  Bing. 
14;  5  Cas.  &  P.  58.  Where  an 
author  was  engaged  to  write  a 
treatise  for  a  periodical  the  publi- 
cation of  which  was  abandoned 
before  the  completion  of  such 

Held  that  tlie  author  was  en- 
titled to  compensation  on  the 
basis  of  quantum  meruit,  without 
delivering  or  tendering  the  treatise. 

Gollancz  v.  Dent  (Eng.)  (1903), 
88  L.  T.  358. 

Thome  v.  French  (1893),  4 
Misc.  (N.  Y.)  430;  24  N.  Y. 
Supp.  694;  aff'd  143  N.  Y.  679;  39 
N.  E.  494. 

^' Clark  V.  West  (1910),  137 
A.  D.  (N.  Y.)  23;  122  N.  Y.  Supp. 

380.  Where  the  contract  provides 
that  B  shall  write  a  book,  take 
out  copyright  in  his  own  name 
and  then  assign  the  copyrigiit  to 
A  for  all  of  which  A  agrees  to 
pay  B,  it  is  a  breach  of  the  con- 
tract for  A  to  take  out  copyright 
in  his  name  in  the  book. 

Where  B  agrees  to  wTite  five 
books  for  A  and  A  agrees  to  pay 
B  specified  compensation  upon 
publication  of  such  books,  B 
having  written  and  delivered  to 
A  one  book  refuses  to  write  or 
deliver  balance  because  of  some 
breach  of  the  contract  by  A. 
Held  that  B  may  sue  for  breach 
of  entire  contract,  contract  not 
being  severable,  and  secure  dam- 
ages for  such  breach. 


author  receive  in  lieu  of  all  compensation  a  percentage  of 
the  gross  receipts  or  net  profits.  If  there  is  no  time  limit 
within  which  the  film  is  to  be  made  and  exhibited,  the 
author  is  entitled  to  have  the  work  reproduced  and  ex- 
hibited within  a  reasonable  time.  Should  the  producer 
fail  to  do  so,  the  author  may  either  rescind  the  contract  of 
sale  or  sue  for  damages  for  breach  of  the  contract  and 
recover  the  reasonable  value  of  the  work  for  motion 
pictures.  If  the  agreement  provides  for  the  exhibition  of 
the  motion  picture  within  a  specified  time  the  same 
principles  apply." 

Difficulty,  however,  is  encountered  in  fixing  the  value 
of  a  Hterary  work  for  motion  pictures.  It  is  almost  always 
problematical  whether  a  work  will  be  successful  when 
reproduced  in  motion  pictures.  The  play  itself,  the  stag- 
ing thereof,  the  acting  of  the  performers  who  participate 
in  its   creation,   the   character  of  the  advertising,   the 

^^  Bobbs-Merrill  Co.  v.  Univer-  of  such  failure  the  contract  was 
sal  Film  Mfg.  Co.  (1916),  160  terminated  and  all  rights  granted 
N.  Y.  Supp.  37.  Plaintiff  licensed  to  defendant  reverted  to  it. 
defendant  to  make  ])hotoplays  Court  granted  injunction  re- 
from  three  books,  defendant  agree-  straining  defendant  from  assert- 
ing to  pay  a  specified  percentage  ing  any  rights  under  the  con- 
of  the  gross  receipts  and  paying  tract. 

an  advance  upon  such  royalties  While  v.  Constable  &  Co.  (Eng.) 

of  a  specified  sum.     Defendant  (1901),    Times,    March    23.      A 

further    agreed    to    prodTice    the  failure  to  publish  a  book  upon 

motion      pictures     within      nine  the  date  fixed  by  the  contract 

months  after  the  signing  of  the  renders  the  publisher  liable  for 

contract.      Defendant    failed    to  damages     resulting     from     such 

produce    the    films    within    the  delay.    But  see  Kerkcr  v.  Lcderer 

specified     period     and     plaintiflf  (1900),  30  Misc.  (N.  Y.)  651;  64 

notified  defendant  that  because  N.  Y.  Supp.  506. 


methods  of  release  are  some  of  the  elements  that  must 
be  taken  into  account.  Courts  are  reluctant  to  permit 
juries  to  fix  the  value  of  such  rights,  unless  definite  and 
concrete  evidence  of  the  value  of  such  rights  with  respect 
to  the  work  in  (lue.stion  is  adduced.-^ 

If,  however,  the  work  has  been  reproduced  in  motion 
pictures  and  the  producer  fails  or  refuses  to  continue  its 
exploitation,  evidence  showing  how  the  motion  picture 
was  received,  how  the  newspapers  treated  its  production, 
criticism  of  the  press,  the  gross  rentals  on  account  of 
exliibitions  of  the  film,  are  all  proper  elements  upon  which 
the  jury  can  base  an  estimate  of  the  value  of  the  motion 
picture  rights  of  the  work.-^ 

Section  22. — Where  the  amount  to  be  paid  to  the  author 

is  guaranteed. 

The  agreement  may  guarantee  a  specified  amount  as 

the  author's  share  within  a  certain  period.    If  the  film  is 

not  reproduced  and  exploited  during  the  period,  or  if  the 

^^  Lerison    v.    Oes    (1917),    98  theatre.    The  play  was  a  failure. 

Misc.  (N.  Y.)  260;  Wakeman  v.  On   the   trial   of   an   action   for 

Wheeler  (1886),  101  N.  Y.  205;  breach  of  the  contract,  the  court 

4  N.  E.  264;  Bermtein  v.  Meech  lield    that    plaintiff    could  show 

(1891),  130  N.  Y.  354;  29  N.  E.  how  the   play  was  acted,  what 

255;  Benyaker  v.  Scherz  (1905),  the  audience  said  and  did,  how 

103  A.  D.  (N.  Y.)  192;  92  N.  Y.  the  newspapers  treated  its  pro- 

Supp.  1089;  Neio  York  Academy  duction,  and  the  criticism  of  the 

of  Music   V.    Hackett    (1858),   2  press,   and    whether    the   actors 

Hilt.  (X.  Y.)  217.  were   called   before  the   curtain, 

■*  Ellis    V.    Thompson    (1896),  and     how     many     times,     and 

1  A.  D.  (N.  Y.)  606;  37  N.  Y.  whether     there     was     applause. 

Supp.    468.      Defendant    aRreed  Charley    v.    Poithoff    (19a3),    95 

to  produce  a  play  in  a  first  class  N.  W.  124. 


author's  share  of  the  receipts  or  profits  during  such  period 
is  less  than  the  guaranteed  amount,  then  the  author  may 
recover  an  amount  which,  when  added  to  the  sum  that 
he  has  received,  will  equal  such  guarantee. 

Section  23. — ^Where  the  payment  to  the  author  is  a  stipu- 
lated amount  per  performance  or  per  period. 

Contracts  have  frequently  been  made  for  production  of 
plays  upon  the  stage  whereby  the  producer  has  agreed  to 
pay  to  the  author  a  stipulated  amount  for  each  per- 
formance. It  has  been  held  that  where  the  producer  has 
agreed  to  exploit  the  play  for  a  specified  period,  the  author 
may  recover  for  the  entire  period  at  the  stipulated  amount 
per  performance,  whether  the  play  had  been  produced 
during  such  period  or  not.  The  same  appHes  where  the 
payment  is  made  upon  the  basis  of  a  specified  amount 
per  week  or  other  period.-^     If  the  producer  does  not 

^'^  Thorne  v.  French  (1893),  4  denied  but  plaintiff  was  permitted 

Misc.    (N.    Y.)    436;   24   N.   Y.  to  recover  $2,000  damages. 

Supp.  694.     Plaintiffs  owned  the  (2)  Held  also  that  as  defendants 

opera  "The  Maid  of  Plymouth,"  had    announced    their    intention 

and  agreed  to  give  defendant  the  not  to  go  on  with  the  contract, 

performing  rights  during  a  speci-  plaintiff  was  absolved  from  the 

fied    time.      The    latter    was    to  necessity   of   tendering   pcrform- 

produce    it    after    February    13,  ance. 

1892.  After  that  date  defendant  Daly  v.  Stetson  (1890),  118 
did  not  produce  the  opera  but  N.  Y.  269;  23  N.  E.  369.  Plaintiff 
permitted  Hiohard  Mansfield  to  had  contracted  to  soil  to  de- 
play  in  repertoire  at  his  theatre,  fondant  the  exclusive  right  to 
Plaintiff  sought  to  otijoin  him  give  performances  of  "Pique" 
from  using  his  theatre  for  that  and  "Divorce"  for  thirty  con- 
purpose.    (1)  The  injunction  was  secutive  weeks  for  $200  a  week. 


obligate  himself  to  produce  the  play  for  a  deliuitc;  jxTiod, 
he  is  only  lialjle  to  pay  for  actual  performances.'-''' 

He  produced  these  plays  for 
five  weeks,  then  ceivsed  douig  so. 
Plaintiff  sued  for  the  balance 
due  for  25  weeks  amounting  to 
$5,000.  Held  that  plaintiff  was 
entitled  to  recover  as  it  was  a 
breach  of  the  contract. 

'•^  Kennedy  v.  Rolfe  (1916),  174 
A.  D.  (X.  Y.)  10;  160  N.  Y. 
Supp.  93.  Plaintiff  contracted 
with  defendant  to  write  a  sketch 
for  him  which  the  latter  was  to 
produce  in  vaudeville.  The  con- 
tract provided  that  plaintiff  was 
"to  be  paid  a  royalty  of  S25  a 
week  per  each  playing  week  for  a 
period  of  70  weeks." 

Held  that  this  did  not  amount 
to  a  guarantee  of  70  weeks,  and 
a  verdict  in  pUiintiff's  favor  was 
reversed  and  complaint  was  dis- 

Schonberg  v.  Cheney  (1875), 
3  Hun  (N.  Y.),  677.  Defendant 
owned  a  theatre.  He  contracted 
with  plaintiff  to  produce  a  play 
to  be  written  by  the  latter,  and 
to  pay  him  S20  for  each  per- 
formance. Since  the  contract, 
however,  only  specified  one  date. 
May  7th,  as  the  date  of  per- 
formance, and  there  was  no 
other   provision   or   extension   it 

was  held  that  plaintiff  could  not 
recover  inc^-e  than  ?20. 

See  in  this  connection:  St.  Cyr 
V.  Sotfiern  &  Marlowe  (1910), 
140  A.  D.  (N.  Y.)  888;  125  N.  Y. 
Supp.  10.  A  contract  was  made 
between  the  parties  to  the  action 
for  the  production  by  the  de- 
fendants of  a  play  owned  by  plain- 
tiff. The  contract  provided  that 
the  defendants  pay  to  plaintiff 
the  sum  of  one  thousand  dollars 
as  advance  royalties,  the  said 
sum  to  be  forfeited  to  plaintiff 
if  the  play  was  not  produced 
witliin  one  year  from  the  date 
of  the  contract.  The  contract 
also  contained  a  clause  that  the 
defendants  would  give  thirty 
public  performances  during  the 
first  year  for  which  performances 
the  plaintiff  was  to  receive  a 
minimum  of  S50  per  performance. 
The  contract  was  for  a  term  of 
five  years.  Plaintiff  contended 
that  under  the  contract  she  was 
entitled  to  a  minimum  of  SI, 500 
a  year,  thirty  jjcrformances  at 
fifty  dollars  each  for  a  period  of 
five  years.  Contract  construed. 
Held  that  the  guaranty  clause 
was  to  be  construed  together 
with    the    forfeiture    clause    and 



The  author  is  entitled  to  his  royalties  for  performances 
of  his  work  whether  such  performances  were  given  by 
the  producer  with  whom  he  contracted  or  by  the  pro- 
ducer's hcensee.-^  A  producer  will  not  be  permitted  to 
set  up,  as  a  defense,  in  an  action  for  royalties,  the  in- 
vaUdity  of  the  author's  copyright.-^ 

upon  defendant's  failure  to  pro- 
duce the  play,  they  forfeited 
the  11,000  paid  to  plaintiff  but 
were  not  liable  for  any  other 

^'' Neufeld  v.  Cha-pman  (Eng.) 
(1901),  Times,  Oct.  31.  Plaintiff 
assigned  copyright  in  his  book  to 
defendants  who  agreed  to  pay 
him  a  percentage  on  the  published 
price  of  all  copies  sold  beyond 
a  specified  number.  Held  that 
plaintiff  was  entitled  to  royalties 
upon  all  copies  of  magazines  sold 
wliich  contained  his  work  in 
serial  form,  the  published  price 
to  be  estimated  by  taking  a  part 
of  the  published  price  of  the 
magazine  in  proportion  to  the 
space  taken  up  therein  by  the 
selection  from  plaintiff's  book. 

But  see:  Nichols  v.  A7nal- 
(famated  Prens  (Eng.)  (1908), 
C.  A.  May  12.  Whore  the  pul)- 
ILsher  was  the  sole  owner  of  the 
copyright  under  a  contract  whicli 
contained  no  limitations,  he  could 
not  be  compelled  to  i)ay  royalties 

for  the  publication  of  the  work 
by  a  third  party,  even  though 
made  with  the  pubUshers'  ap- 

^«Nilsson  V.  De  Haven  (1900), 
47  A.  D.  (N.  Y.)  537;  62  N.  Y. 
Supp.  506;  aff'd  168  N.  Y.  656; 
61  N.  E.  1131. 

Hart  V.  Fox  (1917),  N,  Y.  Law 
Journal,  August  24th.  "He  se- 
cured a  license  from  the  plaintiff 
and  cannot  be  heard  to  impeach 
his  title." 

See  in  this  connection:  Sea 
Gull  Specialty  Co.  v.  Humphrey, 
Humphrey  v.  Sea  Gull  Specialty 
Co.  (1917),  242  Fed.  (C.  C.  A.) 
272;  affirming  the  judgment  upon 
the  opinion  of  the  court  be- 

The  following  opinion  was 
filed  in  the  court  below: 

In  this  case  defendant  was  using 
certain  patxMited  box-making  ma- 
chines under  a  license  from  plain- 
tiff and  owed  royalties.  Another 
c(mcern,  using  an  infringing  ma- 
chine, invaded  its  territory  and 



Section  24.— Where  the  amount  of  damages  in  the  event 
of  a  breach  is  stipulated. 
If  the  parties  fix  a  stipulated  amount  as  damages  in 
the  event  of  the  failure  of  one  to  deliver  the  finished 
manuscript  or  the  other  to  reproduce  and  exhibit  the 
work  on  or  before  a  specified  date,  the  courts  will  permit 
a  recovery  of  the  amount  j&xed  by  the  parties  as  their 
damages.  2^ 

succeeded  in  taking  away  de- 
fendant's largest  customer  by 
underbidding  its  prices.  De- 
fendant retained  the  machines, 
but  declined  to  pay  royalties, 
on  the  ground  plaintiff  was  obli- 
gated to  prevent  competition, 
and  the  loss  on  sales  amounted 
to  more  than  the  royalties  due. 
I  sustained  a  demurrer  to  the 
jurisdiction  of  the  court,  and  while 
the  matter  was  pending  in  the 
Supreme  Court  on  appeal  the 
parties  compromised  and  settled 
all  of  their  differences,  except 
the  question  of  the  amount  of 
royalties  due.  The  judgment 
dismi-ssing  the  bill  was  re- 

The  bill  prayed  for  an  injunc- 
tion, for  cancellation  of  the  li- 
cense and  the  return  of  the  ma- 
chines, and  for  an  accounting. 
Those  questions  are  now  out 
of  the  case,  but  the  (juestion  as 
to  the  royalties  is  before  me.    Had 

the  defendants'  territory  been 
invaded  by  a  licensee  of  plaintiff, 
or  by  one  allowed  to  infringe  by 
connivance  of,  or  agreement  with, 
plaintiff,  a  different  question 
might  be  presented.  The  license 
did  not  guarantee  defendant 
against  loss  by  the  competition 
of  infringers.  The  subsequent 
correspondence  did  not  amend 
the  contract,  or  create  an  es- 
toppel to  claim  royalties  already 
earned.  The  greatest  right  de- 
fendant could  have  exercised 
under  the  circumstances  was  to 
abandon  the  contract  after  notice 
to  plaintiff  and  its  failure  to 
vigorously  prosecute  the  in- 
fringers, but  that  course  was  not 

There  will  be  a  decree  in  favor 
of  plaintiff  for  83,786.18  and  for 

^  Conreid  Metropolitan  Opera 
V.  Brin  (1910),  60  Misc.  (X.  Y.) 
282;  123  N.  Y.  Supp.  6. 



Section  25. — Where  the  contract  provides  for  a  forfeiture 
upon  failure  to  pay  the  royalties  due. 
The  producer  may  fail  or  refuse  to  pay  the  royalties 
due  an  author  on  account  of  the  exhibition  of  the  film. 
If  the  contract  provides  for  the  forfeiture  of  all  rights 
by  the  producer  upon  his  failure  to  pay  the  royalties 
when  they  become  due  the  author  by  giving  the  producer 
the  notice  required  by  the  contract  between  them,  re- 
vokes all  the  rights  granted  to  the  producer  and  may 
enjoin  him  from  making  further  use  of  the  film  should  he 
attempt  to  do  so.^°    He  may  also  maintain  an  action  at 

^^  Arden  v.  Lubin,  N.  Y.  Law 
Journal,  Mch.  2,  1916.  Cohalan, 
J.:  "Action  for  an  injunction  and 
an  accounting.  The  plaintiff,  an 
actor  and  dramatist,  entered  into 
an  agreement  with  the  defendant 
Lubin  whereby  the  latter  agreed 
to  present  certain  plays  by 
means  of  motion  pictures  in  con- 
sideration whereof  Lubin  agreed 
to  pay  the  plaintiff  a  certain 
fixed  sum  as  an  actor,  and  further 
agreed  to  pay  him  a  royalty  of 
twenty  per  cent  of  the  gross 
sales  or  rentals  and  extra  charges 
of  whatsoever  name  and  nature 
to  be  derived  by  the  defendant 
Lubin  from  the  exploitation  and 
distribution  of  the  motion  pic- 
tures in  America.  One  play 
under  this  agreement  was  pro- 
duced. It  is  admitted  in  the 
answer   that   the   plaintiff   com- 

plied with  all  the  terms  and  condi- 
tions of  the  contract  on  his  part 
to  be  performed.  The  plaintiff 
however  alleges  that  the  de- 
fendants violated  the  agreement 
by  (1)  failing  to  present  all  the 
plays,  (2)  failing  to  send  stipu- 
lated statements,  (3)  failing  to 
make  payments  of  royalties  at 
times  fixed  in  the  agreement, 
and  (4)  failing  to  render  true 
statements  and  pay  full  amounts 
of  the  royalties  as  provided  for 
in  the  agreement.  The  contract 
provided  that  statements  and 
payments  should  be  made  com- 
mencing on  the  first  day  of  Au- 
gust, 191 1,  and  continuing  quar- 
terly thereafter.  It  appears  that 
no  statement  was  rendered  on 
that  date  and  no  quarterly  state- 
ments were  rendered  either  on 
the  first  day  of  November,  1914, 


law  for  the  royalties  which  have  become  due.  ^\^le^e 
the  contract  does  not  contain  a  forfeiture  clause,  or  wliere 
the  payment  is  not  made  a  condition  of  the  grant,  the 
failure  to  pay  royalties  does  not  terminate  the  producer's 

nor  on  the  first  day  of  February, 
1915,  nor  the  first  day  of  May, 
1915.  In  fact,  the  first  statement 
and  check  were  received  after 
the  26th  day  of  July,  1915.  I 
am  satisfied  that  the  failure  to 
send  these  statements  and  pay 
the  royalties  thereunder  within 
the  time  fixed  by  the  agreement 
was  a  breach  sufficient  to  warrant 
the  termination  of  the  agree- 
ment [Ilenehj  v.  Stark,  128 
N.  Y.  Supp.  70 1 ;  Weber  v.  Mapes, 
98  A.  D.  (N.  Y.)  165].  Further- 
more, the  plaintiff  contends  that 
he  is  entitled  to  twenty  per  cent  of 
the  gross  income  derived  by  the 
defendants  from  the  pictures 
without  any  deduction.  The  de- 
fendant Lubin  asserts  that  he  is 
only  accountable  for  twenty  per 
cent  of  the  gross  profit  and  rentals 
which  actually  came  into  his 
hands.  The  contract,  however, 
provides  that  the  plaintiff  was 
to  receive  twenty  per  cent  of  the 
gross  sales  and  therein  the  words 
'profits'  or  'expenses'  are  not 
mentioned.  In  a  word,  the  de- 
fendants claim  that  they  should 
be  permitted  to  deduct  from  the 

gross  sales  derived  from  the  pic- 
ture the  expenses  paid  in  exploit- 
ing the  same.  I  am  of  the 
opinion  that  the  contract  shows 
that  it  was  the  defendant's  duty 
to  exploit  the  picture  and  that 
the  charges  therefor  were  not  to 
be  borne  by  plaintiff.  Judgment 
for  the  plaintiff." 

On  the  question  of  waiver  of 
right  of  forfeiture,  see:  Barnett  v. 
Q.  &  C.  Co.  (1915),  226  Fed. 
(C.  C.  A.)  935.  "A  reser\'ed 
right  of  forfeiture  for  breach  of 
an  obligation  may  be  waived 
before  breach  by  an  act  or  dec- 
laration inducing  the  licensee  to 
continue  in  the  performance  of 
its  obligations  and  upon  which 
it  was  reasonably  justified  in 
relying  as  showing  an  intent  to 
suspend  the  exercise  of  the  right." 

Savage  v.  XecUj  (1S96),  8 
A.  D.  (N.  Y.)  316;  40  N.  Y.  Supp. 
946.  See  on  question  of  defend- 
ant's examination  before  trial, 
where  action  is  brought  by  an 
author  against  a  publisher  for 
an  accounting  of  sales  where 
author  is  entitled  to  a  specified 
royalty  upon  copies  sold. 



rights. ^^    The  author  still  has  his  remedy  at  law  for  the 
royalties  which  have  become  due.^-    It  may  also  be  noted 

and  the  defendant  refuses  to  pay 
the  stipulated  royalties,  the  au- 
thor's remedy  is  an  action  at  law 

'^Kerker  v.  Lederer  (1900),  30 
Misc.  (N.  Y.)  651;  64  N.  Y. 
Supp.  506.  The  action  was 
brought  by  the  composers  of 
"The  Belle  of  New  York,"  to 
restrain  the  defendants  from 
producing  the  musical  comedy 
and  to  compel  defendants  to  ac- 
count for  royalties  alleged  to 
be  due  them.  Defendants  failed 
to  give  the  notice  required  by 
the  contract  in  order  to  secure  a 
renewal  of  the  performing  rights 
for  the  theatrical  season  during 
which  they  were  producing  the 
play.  Held  that  by  accepting 
royalties,  plaintiffs  waived  this 
provision  of  the  contract.  It 
was  held  further  that  upon  their 
failure  to  pay  the  royalties,  de- 
fendant's rights  were  not  ter- 
minated as  the  contract  con- 
tained no  forfeiture  clause  and 
finally  that  it  was  doubtful 
whether  plaintiffs  had  a  cause  of 
action  in  equity,  the  court  in- 
timating that  the  proper  form  of 
action  was  one  at  law  for  royalties 

Karst  V.  Prang  Educational 
Co.  (1909),  132  A.  D.  (X.  Y.)  197; 
116  X.  Y.  Supp.  1049.  Where 
the  copyright  iti  a  wf)rk;  was 
in    the  defendant,    a    publisher, 

and  not  one  in  equity. 

^2  Moore  v.  Coyne  (1906),  113 
A.  D.  (N.  Y.)  52;  98  X.  Y.  Supp. 
892.  When  a  state  court  of 
equity  will  refuse  '  to  entertain 
jurisdiction  of  an  action  for 
breach  of  a  contract  to  pay 

"The  contract  simply  provides 
for  the  payment  of  royalties 
upon  a  patented  article  if  manu- 
factured or  sold,  and  if  the  same 
have  been  manufactured  or  sold 
under  the  contract,  then  this 
gives  the  plaintiff  the  right,  7iot 
to  an  accounting,  but  to  the 
royalties  stipulated  to  be  paid, 
for  which  an  action  at  law  may 
be  maintained.  .  .  ." 

Gollancz  v.  Dent  &  Co.  (Eng.) 
(1903),  88  L.  T.  358.  Where  an 
author  is  engaged  to  edit  a  work 
upon  a  royalty  basis  the  remedy 
for  the  breach  of  the  contract 
in  refusing  to  permit  him  to  edit 
the  book  is  an  action-at-law  for 

McCullough  V.  Pence  (1895), 
85  Hun  (X.  Y.),  271;  32  N.  Y. 
Supp.  9S().  "It  is  not  of  every 
action  in  which  it  is  necessary  to 


here  that  where  the  contract  provides  that  the  license 
siiall  be  contingent  upon  the  giving  of  a  specified  nunilxT 
of  performances  during  specified  periods,  a  failure  to  give 
such  required  number  of  performances  will  terminate 
the  license. 

To  sum  up,  if  the  contract  specifies  a  definite  date  f(jr 
the  reproduction  of  the  work,  or  no  time  is  mentioned,  and 
the  work  must  be  reproduced  within  a  reasonable  time, 
a  breach  of  such  provision  of  the  contract  gives  the  author 
the  right  to  rescind.  If,  however,  the  only  breach  of  the 
contract  is  the  failure  to  pay  the  compensation  therein 
provided,  and  pajTnent  is  not  made  a  condition  of  the 
grant,  a  breach  gives  the  author  nothing  more  than  a  right 
of  action  at  law  for  his  compensation. 

Section   26. — Where   manuscript   is   lost   or   converted 

after  submission  to  the  producer. 

There  is  a  good  consideration  to  the  producer  when  a 

manuscript  is  submitted  to  liim,  namely,  the  opportunity 

of  reading  the  manuscript.     For  that  reason  he  is  not 

take  an  account  that  equity  has  In  the  case  at  bar  there  was  not 

jurisdiction.       There     must     be  the    semblance     of     any     trust, 

something  more  than  the  mere  The  action  is  brouglit  to  enforce 

right  to  an  account.     It  would  a  mere  contract  obligation  to  pay 

seem  that,  there  must  be  some  royalties,    and    the    only    final 

trust    or    fiduciary    relation    be-  judgment    would    be    a    money 

tween    the    parties    in    order    to  judgment.    The  defendant  in  an 

justify   a   resort   to   a   court   of  action  at  law,  could  have  a  refer- 

equity  or  a  decree  for  an  account-  ence    to    take    the    accounts,    if 

ing.     Even   the   existence   of   a  necessary,  and,  if  a  discovery- was 

bare    agency    is    not    sufficient,  needed,    an    examination    before 

Marvin  v.  Brooks,  94  N.  Y.  71.  trial  was  open." 


a  gratuitous  bailee  and  will  be  liable  to  the  author  for  its 
value  if  the  same  is  lost  through  his  or  his  employes'  neg- 
ligence.^^ But  where  the  manuscript  is  submitted  solely 
for  criticism  and  advice,  there  is  a  gratuitous  bailment 
and  no  Hability  attaches  in  the  absence  of  gross  negli- 
gence.^^ In  the  case  of  a  conversion  of  the  manuscript,  the 
author  is  entitled  to  recover  its  value,  and  he  may  enjoin 
the  possessor  from  pubUshing  the  same  and  compel  him 
to  deliver  it  up.^^ 

Section  27. — Where  the  work  is  secured  by  means  of  a 
prize  contest. 

Where  a  producer  offers  a  prize  for  any  story  or  scenario 
submitted  to  him  which  he  will  accept  and  reproduce,  the 
producer's  rights  are  limited  to  the  reproduction  and  exploi- 
tation of  the  work  in  motion  pictures,  unless  the  offer  specifi- 
cally provides  that  the  prize  will  be  given  upon  condition 
that  all  rights  in  the  accepted  work  shall  vest  in  him.^^ 

^^  Stone  V.  Long  (Eng.)  (1903),  to  his  customer  and  the  plates 

the  Author,  Nov.  issue.  were  lost.    Held  that  the  printer 

^* Adams  v.  Grossynith   (Eng.)  was  a   "gratuitous  bailee"   and 

(1911),  Times,  March  9.     An  au-  that  the  fact  of  the  loss  did  not 

thor  who  submits  his  play  to  an  raise    any    presumption    on    his 

actor  for  criticism  and  advice  has  part  of  negligence, 
no  claim  for  the  loss  of  the  manu-  '*  Alexander  v.  Manners  Sutto7i 

script  unless  the  actor  has  been  (Eng.)  (1911),Timcs, March  28. 
guilty  of  gross  negligence.     The  '**  Ketelbcy    v.    Maggelt    (Eng.) 

actor  is  a  gratuitous  bailee.  (1911),  Times,  Feb.   8.     Where 

Bullen   v.    The  Sioan   Electric  a  musical  composition  was  sub- 

(Eng.)  (1906),  Times,  Fcl).  8,  22  mitted    in   a   prize   contest   and 

T.  L.   R.  275.     No  liabihty  at-  the  condition  of  the  contest  was 

tached  to  a  printer  who  stored  that  the  jnibhsher  would  publish 

without  cliarge  plates  belonging  and  sell  the  accepted  work  it  was 


Section  28. — On  the  question  whether  an  outright  pur- 
chaser is  required  to  reproduce  the  work. 
A  producer  purchasing  outright  motion  picture  ma- 
terial is  not  required  to  reproduce  the  same  unless  he  has 
contracted  to  do  so." 

held  that  there  was  no  implied 
condition  that  the  winner  would 
assign  tlie  copyright  in  the  work 
to  the  publisher. 

"  In  Morang  &  Co.  v.  Le 
Sueur  (Can.)  (1911),  45  Can.  Sup. 
Ct.  95.  An  author  sold  his  manu- 
script outright  to  a  publisher. 
There  was  no  undertaking  on 
the  part  of  the  publisher,  con- 
tained in  the  agreement,  to  pub- 
lish the  work.  Upon  the  failure 
of  the  publisher  to  print  and  sell 
the  work  the  author  brought  an 
action,  after  tendering  back  the 
amount  he  received  in  payment, 
to  recover  the  manuscript.  It 
was  held  by  a  divided  court  that 
in  the  case  of  a  sale  of  a  manu- 
script by  an  author  to  a  pub- 
lisher, there  was  implied  an  agree- 
ment on  the  part  of  the  publisher 
to  publish  and  upon  his  failure 
so  to  do,  the  author  upon  tender- 
ing the  purchase  money,  was  en- 
titled to  secure  back  his  manu- 

In  a  strong  dissenting  opinion 
Judge  DufT  takes  issue  with  the 
decision   of    the   majority    court 

and  what  we  believe  is  the  more 
logical  position.     He  says: 

"...  It  seems  to  me  that  it 
was  necessary  for  the  adequate 
protection  of  the  publisher  and 
of  its  enterprise  that  it  should, 
on  payment  of  the  stipulated 
price,  acquire  the  author's  entire 
interest  and  property  in  the 
manuscript  which  he  was  em- 
ployed to  produce,  with  all 
rights  which  such  proprietorship 
carries,  including  that  of  with- 
holding the  book  from  publica- 
tion (quoting  case)  the 
publisher  might  find  that  it  had 
brought  about  the  production 
of  a  work  which  it  could  not  make 
use  of,  but  which  might  be  used 
by  the  author  very  much  to  its 

There  can  be  no  doubt  that 
the  parties,  contemplating  no 
event  except  publication,  in- 
tended that  for  the  S500,  to  be 
paid  to  the  author,  the  defendant 
company  should  acquire  all  his 
rights  in  the  book  he  was  em- 
ployed to  write — his  comm(Mi-la\v 
literary    property    iu    it    before 



Section  29. — On  the  question  whether  the  producer  is 
entitled  to  a  refund  of  advance  payment. 
If  a  license  is  granted  for  a  specified  period  and  an 
advance  payment  is  made  on  account  of  royalties  payable 
to  the  author  under  such  license,  the  producer  may  not 
maintain  an  action  against  the  author  upon  the  termina- 
tion of  the  contract  period  for  any  part  of  the  advance 
which  has  not  been  earned  unless  the  contract  expressly 
provides  for  such  refund. 

Section  30. — On  the  question  whether  the  contract  may 
be  rescinded  where  the  author  made  a  poor  bargain 
or  where  fraud  is  involved. 

The  fact  that  the  author  in  granting  a  hcense  or  making 

profit.  For  his  literary  fame  he 
depends  on  publication.  But  it 
is  quite  consistent  with  the  con- 

publication,  and  his  right  to 
statutory  copyright  upon  publi- 
cation. Both  parties  expected 
that  the  plaintiff  would  succeed 
in  producing  a  work  of  such 
character  and  merit  that  the 
defendant  would  publish  it.  Both 
took  some  risk  at  this  point — the 
defendant  took  the  risk  of  in- 
vesting its  $500  in  an  unsuitable 
book — the  plaintiff  the  risk  of 
failing  to  secure  the  opportunity 
of  enhancing  his  literary  reputa- 
tion which  the  pul)lication  of  his 
work  might  be  expected  to  afford. 
I  appreciate  the  observation  of 
Tendal,  C.  J.,  in  Planche  v.  Col- 
burn  that  an  author  is  actuated 
by  the  desire  for  literary  n^puta- 
tion   as    well    as    for    pecuniary 

tract  now  under  discussion,  re- 
viewed in  the  light  of  all  the  cir- 
cumstances surrounding  it,  that 
the  author  refrained  from  stipu- 
lating for  publication,  or  in  the 
alternative  for  the  return  of  his 
manuscript  and  the  right  to  have 
it  pul)lishe<l  otherwise,  because 
he  relied  upon  his  ability  to  pro- 
duce a  book  of  which  the  defend- 
ant's own  business  interests 
would  ensure  the  publication, 
and  he  was  prepared  to  take  the 
risk  of  the  defendant  suppressing 

See    also:    Copingor    "  r>aw    of 
Copyright,"  4th  Edition,  p.  7U3. 


an  outright  sale  had  made  a  poor  bargain,  does  not  en- 
title him  to  rescind  the  contract,  unless  fraud  has  been 
practiced  upon  him.^^  And  in  the  case  of  fraud  he  must 
tender  back  the  benefits  received  by  him  before  revoking 
the  hcense  or  rescinding  the  sale.^'-* 

Section  31.— On  the  question  whether  the  contract  may 
be  rescinded  where  the  producer  made  a  poor  bar- 
gain or  fraud  is  involved. 
The  same  rules  apply  to  a  motion  picture  producer. 
He  may  not  rescind  the  contract  because  he  had  paid  too 
much  for  the  rights;  nor  may  he  set  up  as  a  defense  in  an 
action  to  recover  royalties  that  he  has  been  induced  to 
enter   into   the   contract    tlirough   fraud   and   misrepre- 
sentation without  alleging  that  he  has  surrendered  the 
license   and   the   benefits  received   by   him   under   the 
hcense.  ^° 

^»  Hackett  v.  Waller  (1913),  80  received  by  him  under  the  con- 

Misc.    (N.  Y.)   340;   142   N.   Y.  tract  of  sale. 

Supp.  209.    Here  it  was  held  that  ^''Oulcaull  v.   Bonheur   (1907), 

the  court  was  not  authorized  to  120  A.  D.  1G8;  104  X.  Y.  Supp. 

rescind  a  sale  because  the  author  1099.    A  defense  to  an  action  to 

used  poor  judgment  in  securing  a  recover  royalties  for  the  use  of  a 

small  amount  for  his  work.  play   which  alleges   that   the  li- 

^Ulnckdl  V.  Waller  (1913),  SO  censee  was  induced  to  enter  into 
Misc.  (N.  Y.)  340;  142  N.  Y.  the  contract  by  fraud  and  mis- 
Supp.  209.  Defendant  Walter  representation  of  the  licensor  who 
purchased  a  play  from  plaintiff,  was  not  the  author  or  owner,  does 
rewrote  it ,  and  thereafter  the  play  not  state  a  defense  in  tlio  absence 
was  produced  successfully.  It  was  of  allegations  showing  that  the  de- 
held  that  plaintiff  could  not  have  fendant  rescinded  the  contract 
the  sale  set  aside  because  of  fraud,  and  offered  such  restoration  as 
where  he  retained   the   beuetits  would  place  the  licensor  in  the 


Section   32. — On  the   question  whether  a  contract  to 
write  will  be  specifically  enforced. 
Equity  will  not  compel  an  author  to  specifically  perform 
a  contract  providing  for  the  writing  of  a  book  or  play.^^ 

Section  33. — On  the  question  whether  the  licensor  may 
maintain  an  action  against  third  parties. 
We  have  already  discussed  the  right  of  a  producer 
possessing  a  sole  and  exclusive  license  to  enjoin  his  licensor 
as  well  as  all  other  persons  claiming  through  such  licensor 
from  violating  his  license.^-  It  has  also  been  held  that 
the  licensor,  although  he  has  for  a  period  granted  away 
his  rights,  may  maintain  actions  against  third  parties  for 
any  infringement  of  his  work,  as  such  an  infringement 
affects  his  remainder  interest  in  his  property.''^ 

Section  34. — On  the  question  whether  courts  grant  in- 
junctions pendente  lite  more  readily  in  actions  of 
this  nature. 

In  conclusion,  attention  may  be  called  to  the  fact  that 

position  in  which  he  stood  before  "  Fleroii  v.  Lackaye  (1891),  14 

the  granting  of  the  license.    If  he  N.  Y.  Supp.  292.    The  owner  of  a 

elects  to  disaffirm,  he  must  return  dramatization    who    licenses    a 

the  benefits  received.  third    party    to    produce    such 

A    counterclaim    for    royalties  dramatization   may   in   his   own 

already  paid,  is  demurrable  when  name  maintain  an  action  against 

it  does  not  allege  that  the  license  one  who  pirates  the  dramatiza- 

was  surrendered  and  the  benefits  tion.    "An  injury  to  it  (the  play) 

received  by  the  licensee  restored  reaches    his    proprietary     right, 

to  plaintiff.  notwithstanding    tiie    temporary 

*^  W I litwood  y.  Hardman  (Eng.)  license  given"  to  a  third  party 

(1891),  2  Ch.  416.  "to  perform  the  play  for  a  limited 

*'See  Section  18.  period." 


injunctions  pendente  lite  are  granted  more  readily  in 
actions  brought  by  or  against  authors  or  persons  claiming 
through  such  authors  on  account  of  breaches  of  contracts 
with  respect  to  tlieir  literary  products  than  in  oth^r 
actions,  because  the  delay  involved  in  waiting  for  a  final 
decree  will  frequently  amount  to  a  denial  of  justice.'^ 

"  Chappell  V.  Fields  (1914) ,  210  (1900) ,  30  Misc.  (N.  Y.)  651 ;  64 
Fed.  (C.  C.  A.)  864;  Comstock  v.  N.  Y.  Supp.  506,  where  it  was 
Lopokoiva  (1911),  190  Fed.  (C.  C.)  held  that  because  of  a  sharp  con- 
599;  Nixon  v.  Doran  (1909),  168  flict  of  facts  no  temporary  in- 
Fed.  (C.  C.)  575.  junction  would  be  granted. 

But    see:    Kerker    v,    Lederer 



The  Actor 

Sec.  35.  In  general. 

36.  Injunction  for  breach  of  contract  where  services  are  special, 

unique  and  extraordinary. 

37.  Injunctions  pendente  lite. 

38.  Services  to  be  "satisfactory." 

39.  Length  of  engagement. 

40.  Two  weeks'  notice  and  other  customs. 

41.  Contracts  for  work  on  Sunday. 

42.  Services  "actually  performed." 

43.  Substantial  performance. 

44.  Anticipatory  breach. 

45.  Exposure  to  obscenity,  ridicule,  degradation,  etc. 

46.  Renewal  of  contract — modification. 

47.  How  many  causes  of  action  for  breach. 

48.  Actor's  remedy  for  breach. 

49.  Profits  as  a  basis  for  damages. 

50.  Producer's  offer  of  re-employment  after  breach. 

51.  Grounds  for  discharge. 

52.  Actor's  breach  of  the  contract — damages. 

53.  Changing  motion  picture. 

54.  Contracts  with  infants. 

55.  Inability  of  producer  where  studio  closed  by  the  authorities. 

56.  Questions  of  travel. 

57.  IJooking  agencies. 

58.  Workmen's  Compensation  Acts. 

59.  Carnishmcnt. 

60.  Serial  stories. 


61.  Escrow  agents. 

62.  Where  joint  venture. 

63.  Royalties  in  addition  to  salary. 

64.  Law  governing  validity  of  contract. 

65.  Contract  labor  and  exclusion  laws. 

66.  Performance  in  unlicensed  theatre. 

67.  Contracts  for  transportation — damages. 

68.  Power  of  company's  officer  to  contract — agency. 

69.  Costumes. 

70.  I'^nticement  of  actor. 

71.  Libel  of  actor. 

Section  35. — In  general. 

We  have  seen  that  the  application  of  old  legal  principles 
to  the  evanescent  forces  of  a  new  industry  is  not  always 
easy  of  accomplishment. 

Thus  far  we  have  viewed  this  shifting  adjustment  from 
the  standpoint  of  the  outsider — from  him  who  occasionally 
rubs  shoulders  with  those  in  the  business. 

We  shall  now  discuss  the  outcome  of  the  relationships 
of  the  various  parties  directly  connected  with  the  moti(jn 
picture — the  film  producer,  the  actor,  the  scenario  "v\Titer, 
the  director  and  so  on. 

Section  36. — Injunction  for  breach  of  contract  where 
services  are  special,  unique  and  extraordinary. 

When  an  actor  of  special  ability  breaches  his  contract 
with  the  motion  picture  producer,  it  becomes  very  im- 
portant to  know  how  the  producer  may  seek  redress,  and 
avoid  the  irreparable  damages  that  would  follow  such  a 
breach  of  the  contract. 

The  rule  is  that  where  the  services  of  the  actor  are 
special,  unique  and  extraordinary  and  the  damage  to  the 



producer  would  be  irreparable,  the  latter  may  restrain 
him  from  appearing  elsewhere,  provided  his  contract  con- 
tains a  negative  covenant  not  to  appear  elsewhere.^ 

While  this  is  in  effect  tantamount  to  decreeing  specific 
performance  of  a  contract  for  personal  services,  equity 
makes  the  exception  to  the  general  rule  where  the  serv- 
ices of  the  artist  are  of  such  an  unusual  nature. 

A  contract  for  the  exclusive  services  of  an  actor  or 
dramatist  is  vaHd  and  not  in  restraint  of  trade. ^ 

^Lumley  v.  Wagner  (Eng.), 
(1852),  1  DeG.  M.  &  G.  604; 
Lawrence  v.  Dixe\j  (1907),  119 
A.  D.  (N.  Y.)  295;  104  N.  Y. 
Supp.  516;  Standard  Fashion  Co. 
V.  Siegel-Cooper  Co.  (1898),  157 
N.  Y.  60;  51  N.  E.  408;  Phila. 
Ball  Club  V.  Lajoie  (1902),  202 
Pa.  St.  210;  51  Atl.  973;  Grimston 
V.  Cunningham  (Eng.)  (1894), 
1  Q.  B.  D.  125;  Comstock  v. 
Lopokowa  (1911),  190  Fed.  (C.  C.) 

McCaull  V.  Braham  (1883),  16 
Fed.  (C.  C.)  37.  This  case  con- 
tains a  summary  of  the  English 
and  early  American  decisions 
respecting  the  issuance  of  in- 
junctions in  actions  of  this  charac- 

Daly  V.  Smith  (1874),  49  How. 
Pr.  (N.  Y.)  150.  This  is  a  leading 
case  in  this  country  on  tlie  right 
to  injunction  in  the  case  of  unique 
and  extraordinary  services. 

2  Morris  v.  Colman  (Eng.) 
(1812),  18  Ves.  437;  Tivoli,  Man- 
chester V.  Colley  (Eng.)  (1904),  20 
T.  L.  R,  437;  Mapleson  v.  Ben- 
tham  (Eng.)  (1871),  20  W.  R.  176; 
London  Music  Hall  v.  Austin 
(Eng.)  (1908),  Times,  Dec.  16; 
Clark  Paper  &  Mfg.  Co.  v.  Sten- 
acker  (1917),  100  Misc.  (N.  Y.) 

See  in  this  connection:  Ameri- 
can League  v.  Chase  (1914),  86 
Misc.  (N.  Y.)  441;  149  N.  Y. 
Supp.  6.  Bissell,  J.  "A  court  of 
equity  insisting  that  'he  who  comes 
into  equity  must  come  with  clean 
hands,'  will  not  lend  its  aid  to 
promote  an  unconscionable  trans- 
action of  the  character  which 
the  plaintiff  is  endeavoring  to 
maintain,  and  strengthen  by  its 
application  for  this  injunction. 
The  court  will  not  assist  in  en- 
forcing an  agreement  which  is  a 
I)art  of  a  "general  plan  having  for 



In  determining  whether  the  services  are  special,  unique 
and  extraordinary  the  court  will  take  into  consideration 
the  salary  stipulated  under  the  contract,  the  production, 
the  probability  of  damage,  and  the  indispensaljility  of  the 
actor.    Indeed  tliis  last  named  (juahty  is  the  acid  test.' 

its  ol)ject  the  maintenance  of  a 
monopoly,  interference  with  the 
personal  liberty  of  a  citizen,  and 
the  control  of  his  full  right  to 
lal)or  wherever  and  for  whom  he 
pleases;  and  will  not  extend  its 
aid  to  further  the  purposes-  and 
practices  of  an  unla^^'ful  combi- 
nation, by  restraining  the  de- 
fendant from  working  for  any- 
one but  the  plaintiff." 

'  Edwards  v.  Cissy  Fitzgerald 
(1895),  N.  Y.  Law  Journal, 
January  16.  Pa.ssing  on  the  ques- 
tion of  replacement,  the  court 
said:  "She  has  a  charm  peculiar 
to  herself.  By  her  grace,  beauty, 
and  artistic  methods  she  has  be- 
come a  special  attraction.  The 
plaintiff  would  undoubtedly  find 
it  diflicult  to  procure  a  sul)stitutc 
who  would  be  likely  to  produce  a 
similar  impres-siou  ui)on  the  pui>- 

Zicgfeld  v.  Norworth  (1909),  134 
A.  D.  (X.  Y.)  951;  118  N.  Y. 
Supp.  1151.  On  a  question 
of  injunction  it  was  sliown  that 
the  defendant  wa^^  the  real  star 
around  whom  the  whole  produc- 

tion of  plaintiff's  play  centred, 
and  that  she  had  been  heavily 
featured  in  announcements  and 
advertisements  so  as  to  give  her 
real  prominence. 

Universal  Talking  Machine  v. 
English  (1901),  34  Misc.  (N.  Y.) 
342;  G9  X.  Y.  Supp.  813.  "The 
important  fact  is  that  notwith- 
standing defendant's  defection, 
plaintiff  is  still  able  to  produce 
master  records,  which  defendant 
swears  and  plaintiff  does  not 
deny  are  quite  as  good,  if  not  a 
Httle  better  than  those  which 
defendant  made.  It  does  not 
appear,  therefore,  that  the  same 
services  that  defendant  agreed  to 
render  cannot  readily  be  ob- 
tained from  another,  and  the 
application  for  an  injunction 
upon  this  ground  cannot  prevail." 

See  also:  John~'<on  Co.  v.  Ifiiut 
(1892),  66  Hun,  .504;  affd  142 
N.  Y.  621;  37  N.  E.  564  (manager 
and  advertising  solicitor);  .S/ro- 
hridge  Litho.  Co.  v.  Crane  (1890), 
.58  Hun,  Oil;  12  X.  Y.  Supp.  898 
(lithographer  and  designer) ;  AV.s-.s-- 
Icr  v.  Chappellc  (1902),  73  A.  D. 


If  the  actor  may  be  substantially  replaced  the  courts  will 
not  interfere  by  injunction;  but  if  such  is  not  the  case, 
and  the  manager  or  producer  is  threatened  with  irrepar- 
able loss,  equity  will  step  in  to  give  relief  by  injunction. 

The  fact  that  an  actor  is  special,  unique  and  extraordi- 
nary on  the  stage  would  seem  to  indicate  necessarily  that 
he  is  so  for  motion  pictures.  But  the  courts  will  not  al- 
ways enjoin  in  the  case  of  motion  pictures,  unless  there  is 
some  definite  proof  of  damage.  If  an  actor  threatens 
to  leave  after  the  opening  of  the  play  the  profits  derived 
prior  to  its  closing  down  may  furnish  some  basis  for 
measuring  damages.  On  the  other  hand,  a  motion  pic- 
ture producer  may  have  a  great  actor  under  contract  to 
produce  a  single  picture,  and  upon  his  failure  to  appear 
at  the  studio,  the  damage  will  run  into  future  profits, 
with  no  basis  upon  which  they  may  be  computed.^ 

Of  cpurse,  injunction  will  not  be  granted  unless  there 

(X.  Y.)  447;  77  N.  Y.  Supp.  285  that  of  a  theatrical  manager  who 

(wine  agent);  W.  R.  Mfg.  Co.  v.  finds  a  prominent  artist  deserting 

Rogers  (1890);  58  Conn.  356;  20  him  and  thereby  preventing  the 

Atl.  467  (general  manager) ;  Stern-  daily  or  nightly  performance  of 

berg  v.  O'Brien  (1891),  48  N.  J.  a  going   play.     The   loss   which 

Eq.  370;  22  Atl.  348  (installment  this  plaintiff  will  sustain  is  failure 

c()llector);DePoZv.  <So/(/A;e  (1867),  to    get    a    photoplay  with    Lew 

7    Robt.    (N.    Y.)    280    (actor);  Fields  in  it,  and  consequent  in- 

S.  F.  Co.  V.  Sicgel-Cooper  (1898),  ability   to   sell   or   hire   out   the 

157  ^[.  Y.  60;  51  N.  E.  408  (sale  films.    It  seems  to  me  that  such 

of  patterns);  Carter  v.  Ferguson  damages  are  altogether  specula- 

(1890),  58  Hun,  569;  12  N.  Y.  tive  and  do  not  warrant  the  issue 

Supp.  580  (actor).  of    a    preliminary    injunction    if 

*  Peerless     Feature     v.     Fields  there   be   any   means   by   which 

(1915),    N.     Y.     Law    Journal,  plaintiff's    actual    and    provable 

Sept.  28.     "The  case  is  not  like  loss  can  be  secured  to  it." 



is  a  nogativ^e  covenant  in  the  contract  by  whicli  the 
actor  binds  himself  not  to  take  other  employment  during 
the  term  of  the  contract;  ^  or  in  the  absence  of  such  nega- 
tive covenant  there  jjiay  be  an  affirmative  covenant  to 
render  '^exclusiv^e"  services,  or  facts  showing  that  it  was 
thcjntention  of  the  parties  that  the  actor  perform  at  ncj 
othrr_pla^ejiunng^_the^  liLyi^^^'^  ^'^^^~ 

tract  is  so  worded  that  it  would  be  a  physical  iinjDossibility 
for  the  actor  to  perform  elsewhere 7  Under  these  circum- 
stances the  negative  covenant  would  be  implied. 

The  courts  do  not  favor  the  granting  of  injunctions  in 
cases  of  this  kind  unless  from  the  proof  the  right  thereto 
appears  to  be  reasonably  free  from  doubt. "^ 

First  and  foremost  it  must  appear  that  the  services  of 

''Lacy  V.  Ilouck  (1899),  9  Ohio 
Dec.  (Repr.)  347;  Caldwell  v. 
dim  (1830),  8  xMart.  (N.  S.)  684 
(La.);  Lumlcy  v.  Wagner  (Eng.) 
(1852),lDeG.  M.  &G.  604. 

« Iloyt  V.  Fuller  (1892),  19  X.  Y. 
Siipp.  962.  No  negative  cove- 
nant, yet  injunction  \va.s  Issued  as 
defendant's  services  were  unicjuc 
and  extraordinary  and  she  \va^ 
engaged  during  tlie  "run"  of 
l)laintitT's  play.  See  also:  Cort  v. 
La.'isard  (1889),  18  Ore.  221;  22 
Pac.  1054;  Kurlan  v.  Guiman 
(191')),  90  Misc.  (X.  Y.)  14;  152 
N.  Y.  Supp.  S97;  Palace  Theatre 
V.  Clency  (Kng.)  (1909),  26 
T.  L.  R.  28;  Whitwood  v.  Ilard- 
vian  (Eng.)  (1891),  2  Ch.  416. 

'Duff  V.  Riissell  (1891),  14 
N.  Y.  Supp.  134;  aff'd  on  opinion 
of  court  below  in  133  X'.  Y.  678; 
31  N.  E.  622.  Although  the  con- 
tract contains  no  negative  cove- 
nant, an  injunction  will  he  granted 
where  the  intention  of  the  partie-s 
can  clearly  he  inferred  from  the 
contract  to  have  heen  that  the 
defendant  was  to  render  services 
e.\clusively  for  the  plaintifT.  The 
defendant  agreed  to  give  seven 
performances  each  week  exclusive 
of  Sunday. 

H'anary  v.  Russell  (1894),  9 
Misc.  (X.  Y.)  558;  30  X.  Y. 
Supp.  122;  Gurdon  v.  liarr  (1917), 
X.  Y.  Law  Journal,  Jan.  20th, 
Hendrick,  J. 


the  actor  sought  to  be  enjoined  are  special,  unique  and 
extraordinary.  This  does  not  mean  that  the  parties 
themselves  may  stipulate  that  the  services  are  such,  but 
the  ser\'ices  must  appear  to  be  special,  unique  and  ex- 
traordinary from  the  facts.^  Just  what  would  bring  an 
actor's  services  under  these  classifications  cannot  be 
stated  with  any  degree  of  definitiveness.  The  salary 
paid  him  is  one  method  of  judging.  Yet  here  again  the 
decisions  do  not  harmonize;  for  in  one  case  an  acrobat 
who  received  sixty  dollars  per  week  was  enjoined, ^°  while 
in  another  case  an  opera  singer  earning  two  hundred  and 
fifty  dollars  per  week  was  held  not  to  come  within  the  rule.^^ 

The  better  rule  would  be  to  say  that  the  salary  paid, 
in  conjunction  with  the  other  circumstances  of  the  case, 
is  a  fair  guide  to  the  nature  of  the  services,  and  is  some 
index  to  the  relative  degree  of  importance  of  the  actor. 

Injunction  will  be  granted  only  for  the  term  of  the 
contract — that  is  to  say,  the  actor  will  be  enjoined  from 
appearing  elsewhere  for  as  long  a  time  as  his  contract 
with  the  plaintiff  has  to  run.^-    And  an  actress  will  not 

^Carter  v.  Ferguson  (1890),  58  Gruhan  (Eng.)  (1909),  1  Ch.  413; 

Hun  (N.  Y.),  569;  12  N.  Y.  Supp.  Doherty  v.  Allman  (Eng.)  (1878), 

580;  Hnmmersleinv.  Mann  (1910),  3  App.  Cas.  709;  Gaidij  Theatre  v. 

137  A.  D.  (N.  Y.)  580;  122  N.  Y.  Cisay      Loflm      (Eng.)      (1893), 

Supp.  276.           ,  Times,  Aug.  11th;  Davis  v.  Fore- 

'^Corl   V.   Lazzard    (1889),    18  moM  (Eng.)  (1894),  3  Ch.  654. 

Ore.  221;  22  Pac.  1054.  '^  Shuberl  v.  Ange'ci^  (1903),  80 

'I  Hammerslcin  v.  Mann  (1910),  A.  D.  (N.  Y.)  025;  SO  N.  Y.  Supp. 

137  A.  D.  (N.  Y.)  580;  122  N.  Y.  146.    Modifying  decision  of  lower 

Supp.  276.  court  by  limiting  injunction  to 

When  services  were  held  not  to  date  when  contract  of  employ- 
fee  exclusive.    Sec  also:  Kirchner  v.  ment  would  expire. 



be  enjoined  from  performing  at  another  theatre  during 
the  sunnner  months,  where  the  employment  contem- 
plated under  the  original  contract  was  only  for  a  number 
of  "seasons."  '^  And  where  an  actress  enters  into  two 
contracts  with  the  same  management,  one  for  winter 
performances  and  the  other  for  summer  performances,  one 
contract  may  be  enforced  by  injunction,  and  the  other 
may  not.^' 

In  order  to  entitle  him  to  injunction  the  damage  to  the 
plaintiff  must  be  irreparable.^^  It  has  been  held  that 
where  the  parties  have  agreed  in  the  contract  that  in 
the  event  of  a  breach  the  actress  would  become  hable  to 
a  fixed  penalty  by  way  of  liquidated  damages,  injunction 
would  not  lie,  as  the  damages  had  been  determined  and 
agreed  upon  in  advance.'^ 

^^  Canary  v.  Rxissell  (1894),  9 
Misc.  (N.  Y.)  558;  30  N.  Y. 
Supp.  122;  Lawrence  v.  Dixey 
(1907) ,  1 19  A.  D.  (N.  Y.)  296;  104 
N.  Y.  Supp.  516. 

^*  Keith  V.  Kellerman  (1909), 
169  Fed.  (C.  C.)  196. 

•*  Maplcison  v.  La  Blache,  Su- 
perior Court,  Spec.  Term,  Oct., 
188:i  (N.  Y.).  It  was  held  that 
an  injunction  pendente  lite  to  pre- 
vent defendant  from  si^nins  would 
not  be  granted  where  the  com- 
plaint did  not  aver  that  plaintiff 
would  suffer  irreparable  injury 
or  that  a  competent  substitute 
could  not  l)e  secured. 

'6 II aim  V.   The  Concordia  So- 

ciety (1875),  42  Md.  460.  The 
actor  contracted  to  give  per- 
formances and  agreed  that  for 
his  breach  he  would  be  liable  in 
the  sum  of  S200.  After  he  broke 
the  contract,  plaintiff  attempted 
to  enjoin  him  from  appearing 
elsewhere.  Held  that  since  the 
parties  had  already  contracted 
for  a  specified  sura  as  liquidated 
damages  for  any  violation  of  the 
contract,  they  had  themselves 
settled  the  question  and  amount 
of  damages  resulting: 

"Having  tlius  l)y  their  own 
contract,  made  presumably  with 
full  knowledge  of  the  means  and 
ability    of    the    defendant,    and 



But  this  is  not  the  true  rule.  The  intent  must  clearly 
appear  to  substitute  the  hqaidated  damages  for  per- 
formance. Unless  that  intent  is  clearly  expressed  the 
employer  will  be  entitled  to  an  injunction  nevertheless.^' 

The  element  of  mutuality  in  the  contract  is  indis- 
pensable to  its  enforcement  by  injunction.  There  must 
be  reciprocal  rights  and  obligations,  otherwise  a  court  of 
equity  will  not  enforce  the  contract. 

It  frequently  happens  that  while  the  contract  purports 
to  bind  the  actor  to  appear  for  a  definite  period,  it  fails 
to  obligate  the  manager  to  furnish  the  actor  with  employ- 

having  fixed  by  their  own  esti- 
mate the  extent  of  injury  they 
would  suffer  from  a  nonobserv- 
ance  of  this  condition,  and  having 
indicated  as  clearly  as  if  so  stated 
in  terms,  that  the  only  form  in 
which  they  could  seek  redress 
and  recover  the  stipulated  pen- 
alty or  forfeiture,  was  a  court  of 
law,  the  complainants  are  pre- 
cluded from  now  resorting  to  a 
Court  of  Equity  for  relief  by 
way  of  injunction,  on  the  ground 
that  a  violation  of  this  part  of 
the  contract  would  result  in 
irreparable  damage  and  injury 
to  them." 

To  the  same  effect:  Mapleson  v. 
Del  Puenle  (1883),  13  Abb.  N.  C. 
(N.  Y.)  144. 

"  Diamond  Match  do.  v.  Roeber 
(1887),  100  N.  Y.  473;  13  N.  E. 
419;  Feinstein  v.  Jacobson  (1914), 

161  A.  D.  (N.  Y.)  121;  146  N.  Y. 
Supp.  525;  Phcenix  Ins.  Co.  v. 
Continental  Ins.  Co.  (1882),  87 
N.  Y.  400;  Hoicard  v.  Woodward 
(Eng.)  (1864),  10  Jur.  N.  S.  1123; 
Coles  V.  Sims  (Eng.)  (1853),  5 
DeG.  McN.  &  G.  1;  Avery  v. 
Langford  (Eng.)  (1854),  Kay's 
Ch.  663;  Whittaker  v.  Howe  (Eng.) 
(1841),  3  Beav.  383;  Hubbard  v. 
Miller  {IS7S),  27  Mich.  15. 

Long  V.  Bowring  (Eng.)  (1864), 
33  Beav.  585.  It  was  said  in  this 
case  which  was  an  action  in  equity 
for  the  specific  performance  of. a 
covenant,  there  being  also  a 
clause  for  liquidated  damages, 
"all  that  is  settled  by  this  clause 
is  that  if  they  bring  an  action  for 
damages  the  amount  to  be  re- 
covered is  £1,000,  neither  more 
nor  less." 



mont  during  tiiat  period,     lliis  is  a  defect  fatal  to  the 
contract.^*    So  that  a  contract  made  for  the  services  of  a 

»«  WUmark  v.  Peters  (1914),  1&4 
A.  D.  (N.  Y.)  366;  149  N.  Y. 
Supp.  642.  In  this  case  defend- 
nnt  Peters,  a  coinix)scr,  had  con- 
tracted with  phiintifT  to  write 
music  exclusivoly  for  it  and  for 
no  other  pubhshing  liouse  for  a 
term  of  five  years.  While  injunc- 
tion wa.s  sought  on  tlie  ground, 
strictly  speaking,  of  the  viohition 
of  a  property  right  rather  than  a 
personal  covenant,  the  question 
decided  appHed  witli  equal  force 
to  both.  The  Appellate  Division 
reversing  a  judgment  in  favor  of 
the  plaintitT,  held  tliat  since  the 
plaintiff  had  not  bound  itself  to 
publish  the  defendant  Peters' 
music  within  the  contract  period, 
the  granting  of  an  injunction 
would  place  that  defendant  at 
the  mercy  of  the  plaintiff,  and 
would,  in  effect,  prevent  him 
from  earning  a  livelihood. 

Salman  v.  Arcaro  (1911),  144 
A.  D.  (X.  Y.)  590;  129  N.  Y. 
Supp.  689.  A  negative  covenant 
in  a  musician's  contract  will  not 
be  enforced  where  the  plaintiffs 
do  not  obligate  themselves  to 
furnish  employment  for  any  siMjci- 
fied  period. 

Slntbert  v.  Coyne  (1908),  115 
N.  Y.  Supp.  968.    Plaintiff  sought 

a  temporary  injunction  to  re- 
strain an  actor  from  appearing 
elsewhere,  under  a  negative  cov- 
enant. In  the  contract  plaintiff 
had  agreed  to  pay  defendant  .S3U0 
a  week  for  "each  and  every  week 
that  he  .shall  actually  .  .  .  per- 
form." Held,  that  such  a  con- 
tract was  of  no  value  to  de- 
fendant and  lacked  mutuality. 
Motion  was  denied. 

Arena  A.  C.  v.  McPartlaml 
(1899),  41  A.  D.  (X.  Y.)  352;  58 
N.  Y.  Supp.  477.  AVhere  a  club 
contracted  with  two  boxers  for 
an  exhibition  on  March  29,  1897, 
"or  upon  such  daj'  or  days  and 
hour  to  which  such  exhibition, 
for  anj'  cause,  may  be  mutually 
postponed"  and  they  failed  to 
appear,  the  court  refused  in- 
junctif)n,  since  under  the  contract 
plaintiff,  by  failing  to  agree  mu- 
tually with  defendants,  might  in- 
definitely deprive  them  of  an 
opportunity  to  make  a  living. 

See  also:  Star  Co.  v.  Press  Pub. 
Co.  (1914),  162  A.  D.  (X.  Y.)  4S6; 
147  X.  Y.  Supp.  579;  Lerner  v. 
Tetrazzini  (1911), 71  Misc.  (X.  Y.) 
182;  129  X.  Y.  Supp.  889;  aff'd 
144  A.  D.  (X.  Y.)  928;  129  X.  Y. 
Supp.  1132;  Laurence  v.  Dixey 
(1907),  119  A.  D.  (X.  Y.)  295; 


motion  picture  ''star"  should  always  contain  a  provision 
for  a  guarantee  of  a  certain  number  of  pictures  to  be 
posed  in  or  of  a  fixed  minimum  compensation  to  be  paid 
to  the  actor  within  the  contract  period. 

It  is  easy  to  see  why  this  is  necessary.  Where  an  in- 
junction is  granted  restraining  the  actor  from  appearing 
elsewhere  and  the  plaintiff,  under  his  contract,  is  under 
no  obligation  to  furnish  the  actor  with  employment  or 
to  pay  him  a  minimum  wage,  the  actor  is  unable  to  earn 
his  living. 

Where,  therefore,  the  injunction  is  granted,  the  em- 
ployer must  be  under  a  duty  to  employ  and  pay  the  actor.  ^^ 
While  equity  will  go  far  to  enforce  a  personal  covenant 
of  an  actor,  it  will  not,  in  order  to  do  so,  condemn  him 
to  starvation. 

It  is  essential,  to  the  granting  of  the  injunction,  that 
the  plaintiff  shall  have  fully  performed  his  part  of  the 
contract.  So  that  where  a  grand-opera  tenor  was  to 
receive  a  certain  amount  of  publicity,  and  the  manager 
failed  to  live  up  to  that  covenant,  it  was  held  that  this 
was  such  a  breach  of  the  contract  as  justified  the  singer 

104    N.    Y.    Supp.    516;    Ide   v.  appearing  at  a  rival  music  hall, 

Brown  (1904),  178  N.  Y.  26;  70  the   court   announced    that    this 

N.  E.  101;  Crawford  v.  Mail  and  was  done  for  the  reason  tliat  it 

Express    Pub.    Co.    (1900),    163  was  possible  to  obtain  an  early 

N.  Y.  404;  57  N.  E.  616;  Frazee  V.  trial,  and   that  courts   were  re- 

Edeson,  Lehman,  J.,  N.  Y.  Law  luctant   in   such    cases    to   grant 

Journal,  April  29,  1915.  restraining  orders  whore  tlie  prae- 

"  Palace  Tlieatre,  Ltd.,  v.  Clensij  tical  result  might  mean   the  in- 

(Eng.)    (1909),  26  T.  L.  R.  28.  al)ility  of  the  defendant  to  earn 

While    injunction    was    grantccl  his    livelihood.      8ee    also    cases 

restraining    the    defendant    from  cited  under  footnote  18. 


in  not  performing,  and  the  manager  was  not  entitled  to 
injunctive  relief. '"  And  in  another  case  the  manager  was 
refused  injunction  because  he  failed  to  show  performance 
of  a  contract  under  which  he  was  to  give  the  defendant 
employment  during  the  "acting  weeks"  of  a  term  of 

A  most  unusual  and  interesting  case  in  this  connection 
is  Fechtcr  v.  Montgomery.--  There  an  actor  was  engaged 
for  a  stated  term  to  commence  some  weeks  ahead.  In 
the  meantime  the  manager  had  on  the  boards  a  play 
which  was  proving  verj'  profitable,  and  he  was  loath  to 
discontinue  it.  WTien  the  time  for  performance  of  the 
contract  arrived,  he  continued  his  old  play,  refused  to 
give  the  defendant  a  part  in  any  play,  but  paid  him  the 
salary  stipulated  in  the  contract.  The  defendant  be- 
coming tired  of  this  inactivity,  sought  and  obtained  em- 
ployment at  a  rival  theatre.  In  an  action  to  restrain  him, 
plaintiff  was  defeated,  the  court  holding  that  by  failing 
to  allow  the  actor  to  appear  in  a  play  as  contemplated  by 

-"  Pratt  V.   Montcgriffo   (1890) ,  p:iy   defendant   a   percentage   of 

10  N.  Y.  Supp.  903.  the  profits.     Held  that  plaintiff 

-'//(■//  V.  Iluberkorn   (1880),  3  was     bound     to     produce     plays 

Silv.  Sup.   (X.  Y.)  87;  6  N.  Y.  enough-  to   give   defendant    em- 

Supp.    474.      Where    defendant  ployment  in  "the  acting  weeks" 

agreed    to    perform    for   plaintiff  of  every  year, 

at    such    times    and    places    as  "  Fechter  v.  Montgomery  (Eng.) 

plaintiff   might   direct   "to   com-  (1863),  33   Beav.   22.     See  also: 

mence  on  or  about  .Ian.  4,  1881,  Newman  v.  Gatti   (Eng.)    (1907), 

and   continue   during   tlie   acting  24  T.  L.  R.  IS;  Grimston  v.  Cun- 

wceks  of  six  years,"  phiintitT  ac-  itigham   (Eng.)   (1894),  Q.   B.  D. 

cepted    "the   above   contract   on  12.");    Grant    v.    Maddux    (Eng.) 

tlie  terms  and  conditions  therein  (1846),  15  M.  &  VV.  737. 
stipulated"  and  bound  him.self  to 


the  contract,  plaintiff  had  breached  the  contract — that 
one  of  the  objects  of  the  contract  was  to  enable  the  de- 
fendant to  appear  before  a  London  audience  and  to  dis- 
play his  talents  and  abilities. 

This  case  is  of  prime  importance,  because  it  upholds 
the  doctrine  that  the  actor  is  not  paid  in  terms  of  money 
alone,  but  that  he  is  paid  as  well  in  opportunity  to  appear 
before  the  public,  in  pubhcity  and  in  the  fame  and  reputa- 
tion that  are  concomitant  with  such  opportunity — that  a 
contract  of  employment  with  an  actor  is  sui  generis.-^ 

It  would  seem  to  follow  from  the  foregoing,  that  if  a 
motion  picture  producer  were  to  engage  a  prominent 
actor  for  a  fixed  term,  pay  him  his  salary,  but  make  no 
picture,  that  would  be  a  breach  of  the  contract  suffi- 
cient to  justify  a  rescission  by  the  actor. 

Nor  will  an  injunction  be  granted  to  the  second  man- 
ager with  whom  an  actress  contracted  where  to  do  so 
would  subject  her  to  a  suit  by  the  first  manager.-^ 

The  courts  will  not,  however,  enjoin  an  infant  where 
the  services  are  unique  and  extraordinary.-'^  .Ajid  in  a 
case  where  the  plaintiff,  a  teacher  of  stage  dancing,  con- 

■^^  Pratt  V.  Montegriffo  (1890),  at  the  Tivoli.     The  Tivoli  was 

10  N.  Y,  Supp.  903.  refused    an    injunction    on    the 

2<  New  Tivoli  v.  Ilapprj  Fanny  ground   that   to  grant  it  would 

Fields  (Eng.)   (1906),  Strong  on  expose   defendant   to   an   action 

"Dramatic   and   Musical   Law,"  by  the  Robert  Arthur  Co.  who 

3d  Ed.,  p.  40.     Defendant  con-  had  contracted  first  witli  her,  and 

tracted   in   January,    1906,  with  who  had   a   prior   claim   on  her 

the  Robert  Arthur  Company  to  services. 

appear  at  the  Adelphi.     In  July,  ^^  Aborn   v.   Janis    (1907),   62 

lOOfi,  she  contracted  with  plain-  Misc.    (N.    Y.)    95;    113    N.    Y. 

tiff  to  appear  for  three  seasons  Supp.  309. 



tractcd,  not  only  with  the  infant,  hut  with  her  mother 
as  well,  that  during  the  apprenticeshii)  the  infant  was 
not  to  perform  at  any  place  without  his  consent,  injunc- 
tion was  denied.-'' 

Managers  frecjuently  insert  a  ''barring  clause"  in  their 
contracts  which  provides  that  the  actor  is  not  to  appear 
wdthin  a  certain  radius  for  a  specified  time  before  the 
commencement  or  after  the  termination  of  the  contract. 
Such  contracts  are  upheld,  pro\'iding  the  restrictive  cove- 
nants are  not  too  broad.-"  But  where  the  clause  is  un- 
reasonably wide,-^  or  no  clear  breach  by  the  defendant 
is  made  out  -^  or  no  likelihood  of  irreparable  damage  is 
shown,^°  the  remedy  will  be  denied.     It  is  interesting  to 

2*  Dc  Francesco  v.  Barman 
(Ens.)  (1SS9),60  L.  J.  Ch.  63. 

2'  Wilkop  &  Holmes  Co.  v. 
Boijce  (1908),  61  Misc.  (N.  Y.) 
126;  112  N.  Y.  Supp.  874;  aff'd 
131  A.  D.  (X.  Y.)  922;  115  X.  V. 
Supp.  1150;  London  Music  Hall 
V.  Poliu^ki  (Enp;.),  Strong  on 
"Dramatic  and  Musical  Law," 
3d  Ed.,  p.  42. 

''^Canterbury  ct  Paragon,  Ltd., 
V.  Lloyd  (Eng.)  (1898),  Strong  on 
"Dramatic  and  Musical  Law," 
3d  Ed.,  p.  42. 

=9  London  Theatre  of  Varieties, 
Ltd.,  V.  Evans  C.A.  (Eng.)  (1914), 
31  T.  L.  R.  75.  Defendant  agreed 
to  render  his  services  exclusively 
for  plaintitT  and  further  agreed 
not  to  permit  any  representation 
or  version  of  his  performance  to 

be  given  within  a  certain  radius. 
Phiintiff  contended  that  defend- 
ant liad  permitted  the  presenta- 
tion of  a  motion  picture  version 
of  one  of  his  sketclies  to  be  given 
within  the  prescribed  areas  and 
sought  to  restrain  him  from  per- 
mitting such  performances. 

Held  that  on  the  evidence  de- 
fendant had  not  taken  part  in  the 
alleged  reproduction,  hence  no 
injunction  would  lie. 

3'^  Mapleson  v.  Bentham  (luig.) 
(1871),  20  W.  R.  176.  Where  de- 
fendant, a  tenor,  had  contracted 
to  sing  for  jilaintilT  during  the 
season  commencing  1870,  anil 
agreed  that  after  the  expiration 
of  his  contract  he  would  not  sing 
within  20  miles  of  London  during 
the    year    1871.      Held    that    in- 



note  that  in  measuring  the  distance  defined  in  the  '^  bar- 
ring clause"  the  courts  have  construed  the  same  to  be 
from  point  to  point. ^^ 

Section  37. — Injunctions  pendente  lite. 

The  parties  frequently  contract  that  in  the  event  of  a 
breach  by  the  actor,  an  injunction  may  issue  restraining 
him.  That  is  a  useless  provision,  and  will  be  disregarded 
by  a  court  of  equity. ^^     Parties  may  not  by  contract 

junction  to  restrain  his  singing 
at  Brighton  in  1S71,  would  not 
lie,  as  no  irreparable  injury  or 
damage  was  shown. 

31  London  Music  Hall  v.  Poluski 
(Eng.),  Strong  on  "Dramatic  and 
Musical  Law,"  3d  Ed.,  p.  42. 
Defendants  there  had  agreed  in 
a  "barring  clause"  not  to  per- 
form witliin  a  radius  of  a  mile 
and  a  half  of  plaintiff's  theatre. 
Thc}^  contended  that  by  "Phillip's 
Table  of  Distances,"  the  place 
of  performance  was  outside  of 
the  radius  limited. 

Held  that  the  proper  construc- 
tion was  between  point  and 
point  or  "as  the  crow  flies." 

^^Dockstader  v.  Rccd  (1907), 
121  A.  D.  (N.  Y.)  81G;  106  N.  Y. 
Supp.  795.  The  contract  pro- 
vided that  the  services  to  be  ren- 
dered by  defendant  were  "special, 
uniciue  and  oxtraordiiiary."  The 
defendant    agreed    that    in    the 

event  of  a  breach  by  him,  an 
injunction  might  be  issued  against 
him  restraining  him  from  render- 
ing services  for  any  other  person. 
Held  that  the  court  was  not 
bound  by  the  statement  of  de- 
fendant that  his  services  were 
unique  nor  that  it  should  issue 
an  injunction  in  case  the  defend- 
ant attempted  to  work  for  some 
person  other  than  plaintiff.  It  is 
for  the  court  to  say,  whether  in 
the  exercise  of  its  sound  discre- 
tion an  injunction  shall  issue. 

"Parties  to  an  agreement  can- 
not contract  that  courts  will  exer- 
cise their  functions  against  or  in 
favor  of  themselves.  Whether 
or  not  a  court  will  so  exercise  its 
powers  is  for  the  court  itself  to 

Hammerslein  v.  Mann  (1910), 
137  A.  D.  (N.  Y.)  580;  122  N.  Y. 
Hupp.  276.  Held  that  a  clause  in 
the  contract  giving  the  plaintiff 



between  themselves,  usurp  the  functions  of  a  court  of 
equity,  and  stipulate  that  the  court  may  or  may  not 
exercise  its  functions.  The  granting  of  a  temporary  in- 
junction is  always  a  matter  of  discretion  "  and  that  dis- 
cretionary power  may  be  exercised,  not  by  the  parties 
themselves,  but  by  the  court  alone.^* 

the  right  to  obtain  an  injunction 
was  not  binding  on  the  court, 
us  the  parties  could  not  by  pri- 
vate agreement  usurp  the  func- 
tions of  a  court  of  equity  which 
may  alone,  in  its  discretion, 
grant  or  refuse  injunctions. 

"  Willard  V.  Tayloe  (1869),  8 
Wall.  564.  "When  a  contract  is 
of  tiiis  character  it  is  the  usual 
practice  of  courts  of  equity  to 
enforce  its  specific  execution  upon 
the  application  of  the  party  who 
has  complied  with  its  stipulations 
on  his  part,  or  has  seasonably 
and  in  good  faith  offered,  and 
continues  ready  to  comply  with 
them.  But  it  is  not  the  invariable 
practice.  This  form  of  relief  is 
not  a  matter  of  absolute  right  to 
either  party ;  it  is  a  matter  resting 
in  the  discretion  of  the  court,  to 
be  exercised  upon  a  consideration 
of  all  the  circumstances  of  each 
particular  case.  Tiic  jurisdiction, 
said  Lord  Erskine,  'is  not  com- 
pulsory upon  the  court,  but  the 
subject  of  discretion.  The  ques- 
tion is  not  what  the  court  must 

do,  but  what  it  may  do  under  the 
circumstances,  either  exercising 
the  jurisdiction  by  granting  the 
specific  performance  or  abstain- 
ing from  it.'" 

Marconi  Wireless  v.  Simon 
(1915),  N.  Y.  Law  Journal, 
Nov.  22.  Judge  Hough  states: 
"An  injunction,  and  especially 
one  pendente  lite,  is  always  of 
grace  and  not  of  riglit." 

Maplcson  v.  Del  Puente  (1883), 
13  Abb.  X.  C.  (X.  Y.)  144.  "The 
granting  of  an  injunction  pen- 
dente lite  is  always  in  the  discre- 
tion of  the  court,  and  should  be 
ordered  with  caution  and  even 
with  some  reluctance,  and  only 
when  the  rights  of  the  plaintiff 
on  the  law  and  the  facts  are 
clear,  and  the  necessity  for  that 
form  of  equitable  relief  is  mani- 
fest in  order  to  prevent  a  failure 
of  justice."  See  also:  Metro- 
politan Ex.  Co.  V.  Ward  (1890), 
9  X.  Y.  Supp.  779;  Phila.  Ball 
Chtb  V.  Lajoie  (1902),  202  Pa.  St. 
210;  51  Atl.  973. 

'^Dockstader    v.    Reed    (1907), 



All  disputed  and  doubtful  questions  of  fact  must  be 
resolved  in  favor  of  the  defendant  upon  a  hearing  for 
temporary  injunction.^-'  And  the  ex  parte  statements 
contained  in  the  letters  of  third  parties  whose  affidavits 
are  not  submitted  on  the  motion  are  not  competent  and 
cannot  be  considered. ^^ 

Where  the  granting  of  a  preliminary  injunction  might 
result  in  injury  equal  to  or  greater  than  its  denial,  the 
court,  as  a  rule,  will  not  enjoin. ^^  So,  too,  in  a  case  where 
the  equities  of  the  complainant's  bill  are  fully  and  specif- 
ically denied  by  defendant's  answer  under  oath,  for  in 

121  A.  D.  (N.  Y.)  846;  106  N.  Y. 
Supp.  795;  Hammer  stein  v.  Mann 
(1910),  137  A.  D.   (N.  Y.)  580; 

122  N.  Y.  Supp.  276. 

"  Photo  Drama  v.  Social  Uplift 
(1914),  213  Fed.  (D.  C.)  374; 
aff'd  220  Fed.  448;  Kerker  v. 
Lederer  (1900),  30  Misc.  (N.  Y.) 
651;64N.Y.  Supp.  506. 

World  Film  Corp'n  v.  Foy  and 
N.  Y.  Motion  Picture  Corp'n 
(1915),  N.  Y.  Law  Journal,  June 
30.  "  Plaintiff  concedes  that  there 
was  no  contract  in  writing.  There 
was  not  even  a  copy  of  a  proposed 
contract  to  tlie  provisions  of 
which  parties  might  be  held  by 
oral  agreement.  At  most  there 
was  a  draft  of  a  proposed  con- 
tract, which  from  its  very  terms 
was  tentative  and  necessarily 
open  to  review  and  discussion. 
In  any  view  there  is  nothing  to 

show  that  by  oral  or  written 
agreement  plaintiff  assumed  any 
obligation  or  responsibility,  and 
there  being  an  absolute  lack  of 
mutuality,  it  cannot  obtain  pro- 
visional remedy  by  injunction. 
In  addition  there  is  a  clear-cut 
question  of  fact  involved,  and  the 
court  at  Special  Term,  will  not 
determine  that  question  on  affi- 
davits in  advance  of  the  trial. 
Application  for  injunction  denied, 
with  costs." 

'Ulaskell  v.  Oshorn  (1898),  33 
A.  D.  (N.  Y.)  128;  53  N.  Y.  Supp. 

'^  Peerless  Feature  v.  Fields 
(1915),  N.  Y.  Law  Journal, 
Sept.  2>>;Rudge-]Vhitivorth,  Ltd.,  v. 
Ilouck  Mfij.  Co.  (1914),  221  Fed. 
(D.  C.)  678;  De  Koven  v.  Lake 
Shore  &  M.  Co.  (1914),  216  Fed. 
(D.  C.)  955. 



such  case  the  answer  is  deemed  to  overcome  the  equities 
of  the  bill.''8 

Injunctions  pendente  Ute  are  more  readily  granted  in 
cases  of  this  character,  as  the  delay  in  waiting  for  final 
hearing  will  frequently  be  tantamount  to  a  denial  of 

In  a  recent  case,'"  the  defendant,  an  actor,  had  con- 
tracted for  his  services.  He  agreed  that  his  services 
"would  ho  to  the  entire  satisfaction  of  the  employer." 
The  employer  also  had  the  right  to  terminate  the  services. 
Judge  ^lanton  decided  that  the  contract  was  so  unjust 
and  inequitable  that  while  the  employer  might  sue  at 
law,  he  could  not  restrain  the  actor  for  his  breach.  In 
particular,  the  court  said: 

'8  Woodside  v.  Tonopah  (1911), 
184  Fed.  (C.  C.)  358.  See  also: 
Sampson  &  Murdoch  v.  Seaver- 
Radford  Co.  (1904),  129  Fed. 
(C.  C.)  761;  Shubeii  v.  Woodward 
(1909),  167  Fed.  (C.  C.  A.)  47; 
Blounl  V.  Socicle  (1892),  .5.3  Fed. 
(C.  C.  A.)  98. 

^'■'  Comslock  V.  Lopokoioa  (1911), 
190  Fed.  (C.  C.)  599.  Plaintiffs, 
managers,  sued  to  enjoin  defend- 
ants under  a  noj^ative  covenant. 
Held  that  tiie  iletendants  being 
Russian  dancers  of  a  very  high 
order  and  unusual  attainments 
and  personal  characteristics,  they 
could  he  restraineil. 

Also  lield  that  while  the  con- 
tract  provided    tliat    they   were 

to  appear  only  in  first  class 
theatres  (not  vaudeville)  the  mere 
fact  tliat  in  one  theatre  a  vaude- 
ville act  was  introduced  was  not 
a  breach  of  the  contract. 

"In  actions  by  managers 
against  theatrical  artists,  relief 
to  be  of  any  avail  must  generally 
1)0  given  in  the  first  instance  be- 
cause such  artists  are  usuallj'  of 
doubtful  financial  responsibility 
and  the  season  for  which  they 
engage  is  over  before  tlic  cause 
can  be  reached  for  final  hearing." 
See  also:  Chappcll  v.  Fields 
(1914),  210  Fed.  (C.  C.  A.) 

*°  Kenyan  v.  Wcissherg  (1917), 
240  Fed.  (D.  C.)  536. 


"I  am  of  the  opinion  that  the  plaintiff  is  not  entitled 
to  the  reUef  he  seeks,  to  wit,  a  prehminary  injunction. 
It  confers  a  right  upon  plaintiff  to  bind  Weissberg  for  a 
period  of  five  years,  but  it  gives  no  corresponding  right 
to  compel  the  plaintiff  on  his  part  to  perform.  The 
plaintiff  may  discharge  Weissberg  at  any  time  when  the 
manager  determines  that  his  services  are  not  to  his  satis- 
faction. Nowhere  is  it  expressed  what  would  constitute 
satisfaction."  '^^ 

Section  38. — Services  to  be  "  satisfactory." 

Contracts  are  often  made  whereby  the  actor  agrees  to 
render  services  satisfactory  to  the  manager,  or  the  scenario 
writer  agrees  to  write  in  a  manner  satisfactory  to  the 
company,  or  some  other  work  in  connection  with  a  motion 
picture  production  is  to  be  done  in  a  hke  manner.  Serv- 
ices so  rendered  may  be  terminated  or  dispensed  with 
by  the  employer  at  any  time  at  his  own  whim  or  caprice. 
He  is  the  only  one  to  say  whether  the  services  are  satis- 
factory to  him  or  not,  and  the  court  and  jury  may  not 
substitute  their  judgment  for  his  own.-*- 

*^  See  on  question  of  -procedure  should  be  interesting  and  attrac- 

where  injunctive  order  is  disobeyed,  live,  involving  art,  taste,  fancy 

Ziegfeld  v.  Norworth  (1910),  140  and  judgment.    There  is  no  pro- 

A.  D.   (N.  Y.)  414;   125  N.  Y.  vision    in    the    contract    in    any 

8upp.    504;    (1911),    148   A.    D.  manner   limiting   the   publishers 

(X.  Y.)  185;  133  N.  Y.  Supp.  208.  in  the  exercise  of  their  judgment 

^=  Crawford  v.  Mail  &  Express  as  to  what  is  satisfactory,  but  if 

Pub.  Co.  (1900),  103  N.  Y.  401;  his  services  are  unsatisfactory  for 

57N.  E.  616.    "  He  was  not  called  any  reason   they   are   given   the 

upon  to  do  the  work  of  an  or-  right  to  terminate  the  employ- 

dinary    reporter.  .  .  .  The    evi-  ment  upon  a  week's  notice,  at 

dent  design  was  that  the  articles  any   time   they   so  elect."     Sec 

SERVICES    TO    BE    "  SAT1.S1-A(    lOlCV  "'  1  1  .'^> 

And  although  an  attempt  has  been  inadc  in  recent 
decisions  to  limit  the  enii)loyer  to  a  bona  fide  exereise  of 
his  right  and  not  to  permit  its  use  as  a  pretext  merely," 
it  is  difficult  to  see  how  this  may  consistently  be  done. 
There  are  no  limitations  upon  the  word  "satisfactory"; 
and  whether  the  employer's  dissatisfaction  arises  because 
of  the  employe's  work,  or  because  of  the  burden  of  ex- 
pense entailed  upon  him  in  i)aying  his  salary,  or  for  any 
other  one  of  a  thousand  reasons,  is  inuuatcrial.  We  can 
see  no  distinction. 

The  courts  which  make  a  distinctiqn  seem  to  take  for 
granted  that  "unsatisfactory"  is  equivalent  to  "incom- 
petency" and  that  the  employer  may  only  become  dis- 
satisfied with  the  quality  of  the  employe's  work. 

"Unsatisfactory"  and  "incompetent"  are  not  neces- 
sarily correlative  terms,  and  indeed  have  been  squarely 
distinguished.^^  Why  may  not  the  employer  become 
dissatisfied  with  the  fact  that  the  employe  is  in  his  em- 
ploy? As  these  contracts  are  usually  drawn,  it  seems 
reasonable  to  suppose  that  the  employer  has  that  jirivi- 
lege,  and  while  the  doctrine  is  harsh  and  seemingly  one- 
sided, the  parties  should  be  held  to  their  contract;  and  the 
decisions  in  the  great  majority  of  cases  hold  them  to  it.^^ 

also  Editorial  in  New  York  Law  (1S9G),  148  N.  Y.  252;  42  N.  E. 

Mournal,  Jan.  24,  1917.  G77.      See    in    tins    connection: 

".Im.  Music  Stores  x.  Kiisscll  Spain    v.    Manhatlan   Street    Co. 

(1916),  232  Fed.  (C.  C.  A.)  300;  (1917),  177  A.  D.  (X.  Y.)  GIO. 

CiVmonv.Lanison  Co.  (1916),  234  *' lirand   \.  Godwin    (1890),   8 

Fed.   (C.  C.  A.)  507;  Parker  v.  N.  Y.  Supp.  339;  (1890),  9  X.  Y. 

Hyde    &    Bchvian    Amuse.    Co.  Supp.  743. 

(1907),  53  Misc.  (X.  Y.)  549;  103  «  Kendall  v.  West  (1902),  106 

N.  Y.  Supp.  7Si;  Smith  v.  Robson  111.  221;  63  X.  E.  678.    Appellant 



The  courts  have  been  at  pains  to  point  out  this  distinc- 
tion; that  a  contract  calling  for  ordinary  services  con- 
taining a  clause  for  ''satisfaction"  may  only  be  broken 
in  the  event  of  good  faith.  ^^  But  that,  regardless  of  good 
faith,  the  employer  may  discharge  the  employe  for 
''unsatisfactory"  service  where  the  work  involves  taste, 
fancy,    personal    satisfaction    or    judgment. ^^      But    as 

agreed  to  "render  satisfactory 
services"  and  appellee  agreed  to 
pay  for  "satisfactory  services." 
Held  that  the  appellant  did  not 
undertake  to  render  services 
which  should  satisfy  a  court  or 
jury,  but  undertook  to  satisfy 
the  taste,  fancy,  interest  and 
judgment  of  appellee.  It  was 
the  appellee  who  was  to  be  satis- 
fied, and  if  dissatisfied  he  had 
the  right  to  discharge  the  appel- 
lant at  any  time  for  any  reason, 
of  which  he  was  the  sole  judge. 

Peverly  v.  Poole  (1887),  19  Abb. 
N.  Cas.  (N.  Y.)  271,  note.  The 
ccMitract  contained  a  clause  pro- 
viding that  the  defendants  could 
discharge  the  plaintiff  if  his  ser- 
vices should  not  "in  the  estima- 
tion of  the"  defendants  "be 
satisfactorily  rendered."  Held  de- 
fendants could  discharge  plaintilT 
without  giving  any  reason  there- 
for and  it  could  not  be  left  to  a 
jury  to  say  whether  the  services 
were  satisfactorily  rendered. 

The  footnote  to  this  sum- 

marizes all  the  early  decisions  in 
New  York  State  on  this  question. 

^^  Kramer  v.  Wein  (1915),  92 
Misc.  (N.  Y.)  159;  155  N.  Y. 
Supp.  193;  Fuller  v.  Downing 
(1907),  120  A.  D.  (N.  Y.)  36;  104 
N.  Y.  Supp.  991;  Brown  v.  Retsoff 
Mfg.  Co.  (1908),  127  A.  D.  (N.  Y.) 
368;  111  N.  Y.  Supp.  594;  Gins- 
berg V.  Friedman  (1911) ,  146  A.  D. 
(N.  Y.)  779;  131  N.  Y.  Supp.  517; 
Diamond  v.  Mendelsohn  (1913), 
156  A.  D.  (N.  Y.)  636;  141  N.  Y. 
Supp.  775;  Daversa  v.  Davidson's 
Sons  Co.  (1915),  89  Misc.  (N.  Y.) 
418;  151  N.  Y.  Supp.  872; 
Teichner  v.  Pope  Mfg.  Co.  (1900), 
125  Mich.  91;  83  N.  W.  1031; 
Sleveiis  V.  Chicago  Feather  Co. 
(1913),  178  111.  App.  455;  Watkins 
V.  Thurman  (1906),  98  S.  W. 
(Tex.)  904;  Bridgeford  v.  Meagher 
(1911),  144  Ky.  479;  139  8.  W. 

"  Saxe  V.  Shvhert  (1908),  57 
Misc.  (N.  Y.)  620;  108  N.  Y. 
Supp.  683.  Plaintifi",  an  actor, 
contracted    with    defendant    for 



almost  any  contract  concerning  itself  with  the  conception, 
acting,  directing  or  other  preparation  of  a  motion  picture 
involves  an  element  of  artistic  selection,  it  is  safe  to  say 
that  almost  every  contract  which  can  come  up  for  con- 
struction along  these  lines  will  fall  w^ithin  the  latter  rule. 
So  that  if  one  undertook  to  write  a  scenario  for  a  motion 
picture  company  to  be  "satisfactory"  to  it,  or  to  its 
"satisfaction,"  the  company  could  not  be  compelled  to 
accept  the  same/^^ 

his  services  whidi  were  to  be 
"satisfactorily  rendered"  to  the 
defendant.  Said  Judge  Gerard: 
"Where  a  contract  contains  a 
clause  that  the  services  are  to 
be  satisfactory  to  tlie  employer, 
he  has  the  right  to  discharge  if 
the  services  are  not  satisfactory 
to  him,  if  the  employment  is  of 
the  class  involving  taste,  fancy, 
interest,  personal  satisfaction  or 
judgment;  and  if  the  emploj'er 
discharges  the  employe  the  ques- 
tion whetlicr  or  not  the  services 
of  the  employe  are 'satisfactory 
is  to  be  determined  solely  by  the 
employer  and  not  by  tlie  court 
or  jury.  Hut  where  the  employ- 
ment is  not  of  that  class,  and 
where  the  master  has  the  power 
to  discharge  the  employe  if  sat- 
isfied in  good  faith  that  he  is 
incomiM'tcnt,  there  the  good  faith 
is  a  question  of  fact,  which  must 
be  submitted  to  the  jury." 

Defendant  was  sustained  and 
phiintifT  non-suited. 

Weaver  v.  Klaw  (1891),  16 
N.  Y.  Supp.  931.  Where  a  person 
is  engaged  and  agrees  to  render 
services  to  the  satisfaction  of  the 
employer,  "if  his  or  her  work  is 
not  satisfactory  to  the  employer, 
and  particularly  when  it  is  a 
matter  of  taste,  fancy  or  judg- 
ment, he  may  at  any  time  dis- 
charge him,  without  subjecting 
himself  to  further  claim."  Mc- 
Carthy, J.  It  is  error  to  leave 
the  question  as  to  the  comjx^ 
tency  of  the  employe  in  such,  to  the  jury. 

*^aienny  v.  Lacy  (1888),  1 
N.  Y.  Supp.  513.  PlaintifT 
agreed  to  complete  a  play  "to 
the  satisfaction"  of  the  defend- 
ant. Held  that  defendant  was 
not  compelled  to  take  and  pay 
for  the  play  unless  he  was  satis- 
fied with  it. 


The  dissatisfaction  can  only  be  exercised  by  the  person 
named  in  the  contract.  And  where  under  a  contract  a 
plaintiff  could  be  discharged  for  specified  reasons,  and  the 
defendant  was  to  be  "the  sole  arbiter  and  judge,"  it  was 
held  that  discharge  by  an  employe  of  defendant  for  one 
of  the  specified  reasons  did  not  reUeve  the  defendant 
from  HabiUty/^ 

But  there  is  a  distinction  between  "satisfactory"  serv- 
ices and  services  "satisfactorily"  performed.  In  the 
latter  case  the  employer  obviously  is  not  to  be  the  Judge 
of  whether  the  services  have  been  so  performed,  but  the 
jury  alone  may  pass  upon  it.^"  Where  the  employer  may 
"deem"  the  services  not  satisfactory,  this  gives  him  the 
absolute  right  to  discharge. ^^ 

The  employer  incurs  one  penalty,  however,  by  having 
a  "satisfaction"  clause.  In  the  event  that  the  employe 
breaches  the  contract,  an  injunction  to  decree  specific 
performance  will  not  issue,  and  he  cannot  be  restrained 
from  appearing  elsewhere,  no  matter  how  unique  or  ex- 
traordinary his  services.  This  has  lately  been  decided  by 
Judge  Manton  in  a  motion  picture  case  where  the  con- 
tract in  question  contained  a  clause  to  the  effect  that  the 
actor's  services  "would  be  to  the  entire  satisfaction  of 
the  employer."  There  were  other  clauses  in  the  con- 
tract, which  taken  together,  indicated  such  want  of 
mutuality  and  reciprocal  obligations  that  the  court  was 
constrained  to  hold  specific  performance  impossible. •'- 

«  Lipshulz    V.   Proclor    (1905),  "  Glyn  v.  Miner  (1894),  6  Misc. 

95  N.  Y.  Supp.  56G.  (N.  Y.)  637;  27  N.  Y.  Supp.  341. 

'">  Ilyilecher  V.  WilUnm.s  (1892),  ^^  Kenrjon  v.  Weisi^herg  (1917), 

18  N.  Y.  Supp.  580.  240  Fed.  (D.  C.)  53G. 

LENGTH    or   KNOAniCMKNT  117 

This  decision  is  of  prime  importance,  as  it  is  the  only 
theatrical  or  motion  picture  case  reported  where  a  con- 
tract containing  a  "satisfaction"  clause  was  held  in- 
capal)le  of  being  specifically  enforced  in  a  court  of  equity. 
The  theory  upon  which  it  is  decided  is  thoroughly  sound 
and  e(iuital)le,  and  we  believe  that  it  will  stand  as  the 

Section  39. — Length  of  engagement. 

It  is  not  easy  to  deternmie  in  every  instance  for  how 
long  a  period  the  actor  was  engaged.  The  elements 
that  enter  into  the  calculations  on  this  subject  are  the 
length  of  the  season,  the  run  of  the  play  and  the  special 
language  of  the  contract,  which  in  each  instance  must 
be  construed  on  its  own  merits. 

Wliilo,  as  a  general  proposition,  the  language  of  a 
contract  is  to  be  construed  by  the  court  alone,  ambiguities 
freciuently  occur  which  permit  of  the  introduction  of 
evidence  to  explain  or  amplify  them. 

The  contract  is  often  oral,  with  perhaps  a  letter  or 
two,  to  confirm  it.  Such  letters  or  writings  are  prop- 
erly admissible  in  evidence.^''  In  such  event  it  becomes 
a  question  of  fact,  and  by  that  token,  a  question  for  the 
jury  to  determine  for  how  long  a  period  the  actor  was  en- 

"fio?/.'    V.     Midland    Lyceum  12  Misc.  (X.  Y.)  83;  33  N.  Y. 

Bureau  (1912),  138  N.  W.  (Iowa)  Supp.    17.     See  also:   Loftus  v. 

384;  Perry  v.   Bates   (1906),   115  y?ofec?7s  (Eng.)  (1902),  18  T.  L.  R. 

A.   D.    (N.  Y.)  337;  100   N.   Y.  532;     Wade     v.     Robert     Arthur 

Supp.  881.  Theatre    Co.    (Eng.)    (1907),    24 

^*  Sherwood   v.    Cratie    (1895),  T.  L.  R.  77. 



A  contract  employing  an  actor  for  the  "season"  is  not 
one  for  an  indefinite  hiring, '^^  although  in  such  a  case 
there  must  be  some  evidence  showing  how  far  the  season 
extends.  But  where  the  language  of  the  contract  as  to 
the  "season"  is  qualified,  the  court  will,  as  a  rule,  infer 
an  intention  to  terminate  sooner,  and  will  not  penalize 
a  defendant  who  has  been  compelled  to  close  the  play 
before  the  end  of  the  season. ^^ 

A  contract  for  a  "long  engagement"  is  uncertain  and 

Nor  will  the  courts  enforce  a  contract  which  is  made 
subject  to  another  contract  which  is  to  be  substituted  in 
its  place  at  some  future  time,  unless  a  waiver  of  such 
substitution  is  proved.^^    And  it  is  for  the  jury  to  say 

^^  Spahn  V.  Winter  Garden 
(1912),  138  N.  Y.  Supp.  446. 

*«  Strakosch  v.  Strakosch  (1890) , 
11  N.  Y.  Supp.  251. 

"Gray  v.  Wulff  (1896),  68  111. 
App.  376.  A  leader  of  an  or- 
chestra sued  to  recover  salary, 
and  the  defense  was  incompetence 
and  justifiable  discharge.  Plain- 
tiff introduced  a  letter  in  whicli 
he  had  written  defendant  "if  you 
can  make  salary  SI.')  weekly 
payable  weekly,  and  can  guaran- 
tee me  a  long  engagement,"  to 
which  he  received  a  wire  to 
come  on. 

Held  that  tlic;  term  "long  cti- 
gagemenl"  was  uncertain  and  in- 
definite, and  that  defendant  had 

the  right  to  discharge  him  upon 
giving  him  tiie  usual  and  cus- 
tomary notice. 

London  Music  Hall  v.  Austin 
(Eng.)  (1908),  Times,  Dec.  26th. 
Construing  the  expression  "com- 
pletion of  the  engagement." 

^^  Walton  V.  Mather  (1896),  16 
Misc.  (N.  Y.)  546;  38  N.  Y. 
Supp.  782;  aff'g  15  Misc.  (N.  Y.) 
453.  Where  a  memorandum  is 
signed  which  reads  "subject  to 
the  conditions  and  regulations 
of  a  contract  whic^h  is  to  be  sub- 
stituted for  this  memorandum" 
there  is  no  binding  contract 
until  a  subsequent  contract  is 
drawn  unless  the;  parties  waive 
such    subsequent    contract    and 

TWO  wi:i:ks    notich  and  other  customs 


whether  or  n(jt  a  contract  whicli  luid  been  clumged  by 
one  of  the  parties  was,  as  so  modified,  accepted  by  the 
other  party. '^^ 

The  term  "season"  has  not  acquired  in  the  motion 
picture  in(histry  a  secondary  meaning,  nor  is  there  in  the 
industry  a  well-defined  i)eriod  of  time  during  wliich  actors 
arc  generally  engaged  in  posing,  as  there  is  in  the  theatrical 

Section  40. — Two  weeks'  notice  and  other  customs. 

There  is  frequently  inserted  in  theatrical  contracts  a 
clause  or  phrase  by  which  either  side  is  to  be  relieved  of 
the  contract  upon  two  weeks'  notice.  Evidence  is  always 
admissible  to  show  the  meaning  of  that  phrase  as  well 
as  the  custom  in  the  profession.^"  The  custom  is  that 
that     the     memorandum      (1904),  99  A.  D.  (X.  Y.)  225;  90 


shall  be  regarded  as  the  contract. 
Such  waiver  may  be  express  or 
imphed  in  fact  from  the  conduct 
of  the  parties. 

Terry  v.  Moss's  Empires,  Lid. 
(Eng.)  (1915),  32  T.  L.  R.  92. 
Where  a  contract  between  a 
music-hall  artist  and  manager 
provided  that  the  artist  could 
transfer  the  dates  of  her  perform- 
ance and  other  dates  were  to  be 
given  her  in  lieu  of  the  dates 
transferred,  it  was  held  that 
neither  party  had  the  absolute 
right  to  fix  the  dates  but  that 
both  were  bound  to  act  reason- 
ably in  the  matter. 

"  McLaughlin  v.  Hammer  stein 

N.  Y.  Supp.  94,3.  After  the  con- 
tract was  signed  by  defendant, 
plaintiff  upon  signing  the  same 
crossed  out  one  of  its  provisions. 
Plaintiff  called  the  attention  of 
the  theatrical  agency  through 
which  he  had  secured  the  engage- 
ment to  the  erasure  and  asked 
thorn  to  inform  defendant  of 
the  same.  Not  hearing  from 
the  agency  plaintiff  entered  upon 
the  performance  of  the  contract 
a.ssuming  that  the  erasure  wtus 
satisfactory.  Held  a  question  for 
tlie  jury  whether  defendant  con- 
sented to  the  change. 

<^'^Hart    V.    Thompson    (1S99), 
39  A.  D.  (X.  Y.)  t)6S;  57  X.  Y. 



where  the  actor  is  engaged  for  an  indefinite  period,  either 
party  may  terminate  the  contract  upon  two  weeks' 

Supp.  334.  This  cause  came  up 
before  the  Appellate  Division  a 
second  time  after  a  trial  before  a 
jury  [see  10  A.  D.  (N.  Y.)  183 
for  opinion  of  Appellate  Division 
upon  appeal  taken  after  first 
trial]  In  affirming  the  judgment 
dismissing  the  complaint  the 
court  said:  "The  evidence  shows 
that  there  was  a  custom  at  the 
time  in  the  theatrical  profession 
where  no  definite  contract  of 
employment  has  been  made,  to 
give  on  the  one  part,  and  accept 
on  the  other,  a  notice  of  two 
weeks  to  terminate  an  employ- 
ment, and  that  in  pursuance  of 
such  custom,  that  notice  was 
given  to  the  plaintiff. 

Haines  v.  Thompson  (1893),  2 
Misc.  (N.  Y.)  385;  21  N.  Y. 
Supp.  991.  Where  an  actress 
was  employed  under  an  oral 
contract  "for  thirty-five  or  forty 
weeks,  perhaps  a  year,"  it  was 
hold  that  no  obligation  was 
thereby  created  to  continue  the 
employment  for  a  year,  and 
hence  the  contract  was  not 
within  the  Statute  of  Frauds, 
and  was  not  rccjuircd  to  be  in 

Plaintiff   wa.s   employed    upon 

"two  weeks'  notice  either  side." 
He'd  that  evidence  of  the  mean- 
ing of  that  phrase  was  admissible. 

"The  attempted  proof  of  the 
meaning  of  the  phrase  '  two 
weeks'  notice  either  side'  was 
not  to  show  that  there  was  a 
custom  in  the  theatrical  pro- 
fession whereby  either  of  the 
parties  could  upon  two  weeks' 
notice  to  the  other  terminate  any 
contract;  but  that,  if  defendant's 
version  of  the  contract  be  true, 
a  seemingly  obscure  part  of  it 
was  understood  by  both  con- 
tracting parties  in  a  particular 

See  also:  Newcomer  v.  Blaney 
(1900),  33  Misc.  (N.  Y.)  95;  67 
N.  Y.  Supp.  170;  Howe  v.  Robin- 
son (1895),  13  Misc.  (N.  Y.)  256; 
34  N.  Y.  Supp.  85. 

^^  DeCarlton  v.  Glaser  (1916), 
173  A.  D.  (N.  Y.)  966;  Briscoe  v. 
Liu  (1896),  19  Misc.  (N.  Y.)  5; 
42  N.  Y.  Supp.  908;  Hall  v. 
Aronson  (1891),  N.  Y.  Law 
Journal,  March  16;  Wall  v. 
Barley  (1872),  49  N.  Y.  464. 

Lovering  v.  Miller  (1907),  218 
Pa.  St.  212;  67  Atl.  209.  By  the 
contract  appellants  (Migagcd  plain- 
tiff for  a  "regular  season." 



But  where  the  contract  is  for  a  definite  term,  as  for  a 
season  or  year,  and  nothing  is  said  therein  as  to  the  two 
weeks'  notice,  evidence  of  such  custom  is  inadmissible.*^ 

The  notice  terminating  the  contract  need  not  be  in 
writing,  although  actual  notice  of  some  kind  is  rorjuired/''' 
and  such  notice  posted  on  the  "Call  Board"  of  the  theatre 
has  been  held  sufficient."* 

The  object  of  the  notice  is  to  liquidate  the  damages, 
and  in  some  measure  protect  the  actor  against  sudden 
loss  of  employment. ''''  The  actor  is  entitled  to  two 
weeks'  salary    after    such    notice    is    given    him,""    and 

"The  number  of  weeks  com- 
prised in  a  reguliir  season  was, 
however,  left  undefined  in  the 
writing,  and  evidence  was,  there- 
fore, prop)erly  admitted  to  show 
the  common  understanding  in 
the  theatrical  business  what  that 
term  included,  and  the  writing 
witii  tliis  evidence  necessarily 
went  to  the  jury  to  find  the  exact 
terms  of  the  contract."  See  also: 
Haag  v.  Rogers  (1911),  9  Ga. 
App.  650;  72  S.  E.  46. 

**  Camp  v.  Baldwin-Mellville 
Co.  (1909),  123  La.  258;  48  So. 
927.  An  actor  wa.s  engaged  by 
telegrams  "for  next  season." 
Subsequently  he  was  given  two 
weeks'  notice  and  discharged. 
Held  that  evidence  that  cither 
party  had  the  right  to  terminate 
the  contract  in  the  customary 
two  weeks'  notice  in  the  face  of 

the  telegrams  was  inadmissible. 
See  also:  Dearin^  v.  Pearson 
(1894),  8  (N.  Y.)  269;  28 
N.  Y.  Supp.  715,  on  refusal  of 
the  court  to  charge  on  the  two 
weeks'  custom. 

"  De  Gelkrt  v.  Poole  (1888),  2 
N.  Y.  Supp.  651. 

**  Clifford's  Olympia  Co.  v. 
Waters  (1898),  84  III.  App.  664. 

^'Dallas  V.  Murnj  (1902),  37 
Misc.  (X.  Y.)  599;  75  X.  Y. 
Supp.  1040. 

^Leslie  v.  Robie  (1903),  84 
N.  Y.  Supp.  289.  Where  the 
contract  provides  that  it  may 
be  terminated  by  giving  two 
weeks'  notice,  it  makes  no  dif- 
ference when  the  notice  is  given 
so  long  as  plaintiff  receives  .salary 
for  two  weeks  after  the  giving 
of  such  notice. 

Fish£r    V.    Monroe    (1893),   2 


actual  discharge  has  been  held  equivalent  to  notice  in 

In  Fagan  v.  Aborn,^^  the  plaintiff  and  his  wife,  vaudeville 
performers,  contracted  for  four  weeks'  performances,  with 
a  three  weeks'  cancellation  clause.  Services  were  to  begin 
December  4th,  1905.  On  October  31st,  1905,  defendant 
wrote  to  plaintiffs  cancelling  the  engagement.  It  was 
held  that  the  notification  by  letter  was  a  cancellation 
under  the  contract  to  take  effect  three  weeks  after  its 
date,  and  the  complaint  was  dismissed. 

In  view  of  the  fact  that  the  motion  picture  business  is 
so  closely  aUied  to  the  theatrical  profession,  the  question 
may  arise  as  to  whether  or  not  such  custom  may  be  said 
to  prevail  in  the  motion  picture  business.  We  do  not 
believe  that  such  a  custom  obtains  in  the  motion  picture 
industry.  A  custom  develops  by  slow  growth  and  is  the 
result  of  long  usage.  It  concerns  itself  peculiarly  with 
its  own  business,  and  after  a  time  becomes  so  firmly  fixed 
and  is  so  well  known  to  the  parties  engaged  in  that  par- 
ticular business,  that  all  contracts  made  by  such  parties 
are  made  with  a  view  to  and  with  reference  to  such  custom. 

The  growth  of  the  motion  picture  industry  is  altogether 

Misc.    (N.    Y.)    326;   21    N.   Y.  "  MocGregrar  v.  Gi'^wore  (1898), 

Supp.    995.      Where    an    actress  25  Misc.  (N.  Y.)  312;  54  N.  Y. 

was      discharged      peremptorily  Supp.    589;    Watson    v.    Russell 

where  she  had  been  hired  on  two  (1890),  149  N.  Y.  388;  44  N.  E. 

weeks'  notice  slie  was  entitled  to  IGl;  De  Vere  v.  Gilmore  (1898), 

recover  two  weeks'  salary.  25  Misc.  (N.  Y.)  306;  54  N.  Y. 

"Sedgwick   on    Damages   lays  Supp.  587. 

down  tlio  doctrine  tliat  notice  in  '^^  Fayan   v.    Ahorn    (1906),   50 

such  was  provided  in  order  Misc.    (N.    Y.)    GtiG;    99    N.    Y. 

to  allow  for  liquidated  damages."  Supp.  479. 



too  roront  to  admit  of  the  dovolopmont  of  any  custom 
similar  to  the  one  above  mentioned.  Nor  can  it  be  argued 
that  by  analogy  or  association  with  the  theatrical  pro- 
fession the  custom  in  the  latter  has  become  the  custom 
in  the  fonner.  There  are  sufficient  elements  of  dissimilar- 
ity Ijctwcen  the  two  professions  to  refute  that  argument. 

In  addition  to  that  custom,  there  are  several  other 
customs  which  have  gro\vn  up  in  the  theatrical  profession. 
There  is  a  custom  that  a  "season"  or  a  "regular  season" 
begins  in  October  and  ends  in  May.*'^  It  has  also  been 
contended  that  when  a  theatre  is  booked  for  one  company 
it  may  not  at  matinees  book  another;""  that  the  "star" 
actor  has  the  privilege  of  selecting  parts  which  are  conso- 
nant with  his  abilities  ^^  and  that  he  is  to  receive  prominent 

** Strafford  v.  Stetson  (1910),  41      September,  and  shall  continue  as 

Pa.  Sup.  Ct.  560.  The  question 
as  to  the  length  of  "the  theatrical 
season  of  1902  and  1903"  was 
properly  submitted  to  the  jury. 

Lovering  v.  Miller  (1907),  218 
Pa.  St.  212;  67  Atl.  209.  In  this 
case  evidence  was  admissible  to 
show  a  custom  or  general  usage 
in  the  theatrical  profession  as 
to  the  number  of  weeks  constitut- 
inj;  a  "regular  season." 

Mcintosh  V.  Miner  (1899),  37 
A.  D.  (N.  Y.)  4S:^;  55  X.  Y.  Sujip. 
1074.  Defendants  engaged  plain- 
tiff as  a  star  for  three  seasons, 
the  first  season  to  coinmence 
"sometime  in  the  month  of 
November,  and  the  two  ensuing 
seasons  somethue  in  tlie  month  of 

long  as  the  same  may  be  miUually 
agreed  upon."  No  competent 
evidence  of  custom  as  to  the 
length  of  the  usual  theatrical 
season  having  been  introduced 
and  no  subsequent  agreement 
as  to  the  length  of  the  seasons 
having  been  made,  Held  tliat  tlie 
court  could  not  enforce  the  con- 
tract nor  ascertain  damages. 

Montague  v.  Flockton  (Eng.) 
(1873) ,  L.  R.  16  Eq.  189.  Custom 
that  the  manager  may  fix  the 
lengtli  of  the  sejuson. 

^o  Cotton  V.  Souyxes.  Strong  on 
"Dramatic  and  Musical  Law,  " 
3d  Kd.,  p.  25. 

"A'cWi/  V.  Caldwell  (1832),  4 
La.  38. 



billing;  ^^  that  a  contract  for  ''year"  means  for  a  season, 
and  that  no  salaries  are  paid  while  the  theatre  is  shut;  "^ 
that  the  lease  of  a  theatre  building  may  be  cancelled  on  a 
month's  notice.'''  The  courts  have  also  permitted  evidence 
to  be  offered  tending  to  show  a  custom  as  to  the  manner 
of  paying  a  manager  his  salary  when  the  theatre  is  closed;" 
that  no  salaries  are  payable  during  rehearsals,  that  only 
half  salaries  are  payable  during  Christmas  hohday  week, 
and  that  all  salaries  are  payable  at  the  end  of  the  week7^ 
There  is  no  custom,  however,  that  a  grant  of  a  license  to 
produce  a  play  is  necessarily  a  "sole  and  exclusive"  one." 

"  Elen  V.  London  Music  Hall 
(Eng.)  (1906),  Times,  May  31, 
June  1. 

^^  Grant  v.  Maddox  (Eng.) 
(1846),  15  M.  &  W.  737.  De- 
fendant refused  to  pay  the  artist 
for  the  time  the  theatre  was 
closed.  Evidence  of  a  custom 
was  admitted  showing  that  while 
the  theatres  are  shut  no  salaries 
are  to  be  paid— that  a  contract 
for  one  or  more  years  really 
meant  for  one  or  more  seasons. 
See  however:  Mapleson  v.  Ben- 
tham  (1871)  (Eng.),  20  W.  R.  176; 
London  Music  Hall  v.  Austin 
(Eng.)  (1908),  Times,  Dec.  16. 

'"  Atncrican  Acad,  of  Music  v. 
Birt,  26  W.  N.  C.  (Pa.)  351. 

'"'Lcavilt  V.  Kennicott  (1895), 
157  111.  2.35;  41  N.  E.  737. 

'« Mapleson  v.  Scars  (Eng.) 
(1911),  105  L.  T.  639. 

"  Hart  V.  Cort  (1913),  83  Misc. 
(N.  Y.)  44;  144  N.  Y.  Supp.  627; 
aff'd  165  A.  D.  (N.  Y.)  583;  151 
N.  Y.  Supp.  4.  The  burden  was 
on  the  defendant  to  establish 
that  a  well-known  custom  existed 
and  that  the  parties  contracted 
with  the  intention  and  expecta- 
tion that  it  should  apply  to  their 
contract.  Here  the  custom 
claimed  was  that  a  grant  of  a 
license  to  produce  a  play  was  a 
"sole  and  exclusive"  one. 

For  other  cases  loherc  the  courts 
held  that  no  custom  existed  see: 
Chap-pell  V.  Harrison  (Eng.) 
(1910),  103  L.  T.  594.  No  cus- 
tom that  piano  makers  will  loan 
their  pianos  to  theatres  gratis. 

Lacii  V.  Osbaldiston  (I'^ng.) 
(1837),  8  C.  &  P.  80.  No  cu.stom 
that  the  manager  may  reserve  a 
private  box. 



For  cither  party  t(j  avail  himself  of  such  custom  in  the 
suit,  he  must  plead  it  in  full,  and  allege  that  the  same 
was  well  known  to  the  parties  at  the  time  the  contract 
was  entered  into;  that  it  was  a  well-recognized  and 
established  custom  and  usage  in  the  profession,  and  that 
both  parties  contracted  with  reference  thereto.^^ 

At  the  trial  expert  evidence  of  members  of  the  profes- 
sion is  sufficient  to  prove  the  customs^^ 

Section  41. — Contracts  for  work  on  Sunday. 

^^^lile  Sunday,  under  the  connnon  law,  was  not  re- 
garded as  a  dies  non,  we  find  early  statutes  in  England 

Wyatt  V.  Phipps  (Eng.)  (1896), 
40  Sol.  Jo.  781.  No  custom  that 
a  tour  on  the  road  is  for  any 
number  of  weeks. 

"De  Carlton  v.  Glaser  (1916), 
173  A.  D.  (X.  Y.)  966;  Hart  v. 
Cort  (1913),  S3  Misc.  (X.  Y.)  44; 
1-14  N.  Y.  Supp.  627;  afT'd  165 
A.  D.  (X.  Y.)  583;  151  X.  Y. 
Supp.  4;  White  v.  Henderson 
(Eng.)  (1885),2T.  L.  R.  119. 

Newhall  V.  Appkton  (1889), 
114  X.  Y.  140;  21  X.  E.  105. 
"Every  legal  contract  is  to  l^c 
interpreted  in  accordance  with 
tlic  intention  of  the  parties  mak- 
ing it,  and,  usage  wlien  it  is  rea- 
sonable, uniform,  well-settled,  not 
in  opposition  to  fixed  rules  of 
law,  not  in  contradiction  of  the 
express  terms  of  the  contract,  is 
deemed  to  form  a  part  of  the 

contract,  and  to  enter  into  the 
intention  of  the  parties,  when  it 
is  so  far  established  and  so  far 
known  to  the  parties,  that  it 
must  be  supf>osed  that  their 
contract  was  made  with  reference 
to  it.  {Wales  v.  Baily,  49  X.  Y. 
464.)  And  evidence  is  always 
admissible  to  explain  the  mean- 
ing which  usage  has  given  to 
words  or  terms  as  used  in  any 
particular  trade  or  business,  as  a 
means  of  enabling  the  court  to 
declare  what  the  language  of  the 
contract  did  actually  express  to 
the  parties.  [Wharton  on  Evi- 
tlence.  Section  962;  Dana  v. 
Fielder,  12  X.  Y.  40;  Hinlon  v. 
Locke,  h  Hil.  (X.  Y.)  437.]" 

"  See  cases  cited  in  footnote  78 



prohibiting  performances  on  that  day.  The  question 
arises— is  a  theatrical  contract  for  a  Sunday  performance 
vaUd  and  enforcible? 

The  weight  of  authority  seems  to  indicate  that  such  a 
contract  is  void.  In  New  York,  for  instance,  the  older 
line  of  cases  established  the  invaUdity  of  such  contracts 
without  much  discussion,  irrespective  of  whether  the 
performance  contemplated  on  Sunday  was  permitted  by 
the  public  authorities  or  not,^^  although  later  the  courts 
seemed  to  lay  more  emphasis  on  the  fact  that  such  per- 
formances were  within  the  prohibition  of  the  Sunday 
statutes.^^     Finally,  in  the  case  of  Strauss  v.  Hammer- 

80  Bilordeaux  v.  Bencke  Lilh. 
Co.  (1889),  16  Daly  (N.  Y.),  78; 
9  N.  Y.  Supp.  507;  Hallen  v. 
Thompson  (1905), 48  Misc.  (N.  Y.) 
642;96N.  Y.  Supp.  142. 

^^  Schwab  V.  Muller  (1916), 
N.  Y.  Law  Journal,  Feb.  18. 
"The  contract  between  the  par- 
tics  provided  that  the  defendant 
engaged  five  cabaret  singers  and 
musicians  under  the  manage- 
ment and  control  of  the  plaintiff 
for  a  period  of  ten  weeks  to  per- 
form at  his  place  of  business  in 
this  city.  That  the  employment 
of  said  cabaret  singers  and  musi- 
cians should  be  between  the 
hours  of  three  p.  M.  and  six  p.  m. 
each  and  every  afternoon  and 
from  seven  v.  M.  to  the  time  of 
closing  of  th(!  cafe  and  restaurant ; 
that  there  should  be  at  least  three 

performers  (musicians  and  sing- 
ers) every  week  day  and  on 
Saturdays,  Sundays  and  holidays 
there  should  be  at  least  five  per- 
formers (musicians  and  singers). 
In  my  opinion  the  contract  pro- 
vided for  labor  on  Sundays  that 
was  not  a  necessity  or  charity.  It 
is  therefore  in  violation  of  Sec- 
tion 2143  of  the  Penal  Law.  It 
hardly  can  be  said  that  such 
work  is  needful  in  the  operation 
of  a  restaurant  or  cafe  for  the 
good  order,  health  or  comfort  of 
the  community.  The  case  of 
Albera  v.  SciarcUi,  131  N.  Y. 
Supp.  889,  is  not  exactly  in  point 
as  in  that  case  the  employe  was 
recjuired  to  render  his  service^ 
upon  the  Sabbath  day  at  such 
theatres  and  in  such  characters 
in  wliich  he  might  be  caat  accord- 


stein, ^'-  the  Api)ellate  Divisi(jn  of  New   York  made  the 
nice  distinction  that  the  parties  would  not  be  presumed 

iii<5  to  the  direction  of  the  em- 
ployer; but  tlie  principle  decided 
in  that  case  is  in  my  opinion  ai> 
plicaijle  to  this  in  that  the  con- 
tract of  employment  provides  for 
Sunday  performances  of  a  charac- 
ter prohibited  by  the  laws  of  the 
state  and  hence  is  void  and  un- 
enforceable. The  demurrer  is 
sustained  and  defendant's  mo- 
tion for  judgment  thereon 

Albcm  V.  Sciardli  (1911),  72 
Misc.  (N.  Y.)  496;  131  N.  Y. 
Supp.  889.  The  contract  pro- 
vided: "It  is  agreed  and  under- 
stood by  both  i)arties  that  in  the 
number  of  performances  to  be 
given  each  week,  Sunday  per- 
formances shall  also  be  included 
in  the  week  witliout  extra  com- 
pensation to  the  party  of  the 
second  part."  Held  entire  con- 
tract was  void  because: 

Contract  was  not  severable, 
hence  entire  contract  was  void 
and  unenforceable  as  such  per- 
formances arc  prohibited  by  stat- 
ute and  as  contract  was  silent  as  to 
place  of  performance,  cf)urt  would 
presume  that  contract  was  i)er- 
formed  witiiin  state  where  it  was 
made.  See  also:  Smith  v.  Wilcox 
(1802),  24   N.   Y.  353;  Lindcn- 

midler  v.  People  (1800),  33  Barb. 
(X.  Y.)  538. 

"'  Strauss  v.  Hammer  stein 
(1912),  152  A.  D.  (X.  Y.)  128; 
13G  X.  Y.  Supp.  013. 

See  also:  Nelson  v.  A.  H. 
Woods  Prod.  Co.  (1913),  X.  Y. 
Law  Journal,  January  9.  ".  .  . 
Finally  the  defendant  claims  that 
the  contract  is  void  on  its  face 
and  no  recovery  can  be  had 
thereon  for  the  reason  that  it 
provides  for  Sunday  perform- 
ances by  the  plaintiff,  contrary 
to  the  Penal  Law.  The  provision 
of  the 'agreement  referred  to  is 
as  follows:  'It  is  understood  and 
agreed  that  in  the  event  that  tlie 
party  of  the  first  part  shall  decide 
to  give  Sunday  concerts  or  per- 
formances, such  concerts  or 
performances,  shall  be  considered 
part  of  the  regular  weekly  series, 
and  the  party  of  the  second  part 
shall  render  services  tliereat  with- 
out e.\tra  compensation.'  Though 
a  contract  for  theatrical  per- 
formances to  be  rendered  in  this 
state  on  Sunday  is  illegal  and 
recovery  camiot  be  had  under  it 
{Albcra  v.  Sciardti,  72  Misc.  490), 
I  am  of  the  oi)inion  that  this  is 
not  such  a  contract.  There  is 
here   no   absolute   provision   for 



to  have  intended  a  violation  of  the  statutes,  and  that  if 
Sunday  performances  were  contemplated,  they  would  be 
such  as  were  permitted  by  the  authorities.  The  same 
rule  was  declared  in  Pennsylvania.^^ 

This  is  the  better  rule.  There  has  been  an  increasing 
demand  on  the  part  of  the  public  for  Sunday  theatrical 
and  motion  picture  entertainments,  and  the  law-making 
bodies  have  given  voice  to  this  demand  by  the  enactment 
of  special  statutes  permitting  the  giving  of  certain  kinds 
of  performances  on  Sunday. 

How  then  may  it  be  said  that  a  contract  which  calls  for 
a  performance  of  the  kind  especially  permitted  by  statute 

performances  on  Sunday.  Such 
performances  were  to  be  entirely 
at  the  option  of  the  defendant. 
The  law  will  not  presume  that 
the  defendant  would  exercise  his 
option  in  breach  of  the  law.  If 
he  should  attempt  to  exercise  his 
option  he  could  not  enforce  it. 
This  provision  can  be  declared 
void  without  destroying  the  con- 
tract, for  this  provision  is  clearly 
severable.  The  contract  is  capa- 
ble of  being  legally  performed, 
and  this  court  will  not  say  that 
it  is  void  l)ecause  of  the  bare 
possibility  of  an  attempt  to  re- 
quire an  illegal  performance." 

*'  Zenalello  v.  Ilammerstcin 
(1911),  231  Pa.  56;  70  Atl.  922. 
IMaintifT  there  bound  himself  "to 
sing  in  his  capacity  of  tenor  and 

shall  sing  in  Italian  in  New  York 
and  in  the  United  States  of 
America  the  operas  of  his  reper- 
tory and  those  which  shall  be 
indicated  to  him." 

The  court  held  that  while  the 
contract  provided  for  Zcnatello 
singing  on  week  days  and  Sun- 
days, the  presumption  was  that 
the  defendant  would  not  require 
liim  to  sing  on  Sunday  in  New 
York,  but  in  places  where  such 
singing  was  permitted.  The  law 
would  not  presume  that  the 
parties  would  do  an  unlawful 

The  validity  of  a  contract  as 
to  matters  affecting  its  perform- 
ance is  to  be  determined  by  the 
laws  of  the  place  of  performance 
and  not  the  place  of  execution. 

CONTRACTS  FOR  WORK  0\  SUNDAY        120 

on  Sunday,  is  void?  To  hold  that  it  is  so  seeins  illogical 
and  absurd. 

Motion  pictures  arc  permitted  to  be  shown  in  New- 
York  City.^^  Under  the  circumstances,  a  contract  be- 
tween the  releasing  company  and  the  exhibitor  for  the 
rental  of  a  Sunday  lilni  would  be  a  valid  contract.  Other- 
wise the  ordinance  above  mentioned  is  without  any  effect. 
What  would  be  the  jnirpose  of  keeping  it  and  similar 
statutes  upon  the  books?  If  a  tlmig  may  legally  be  done 
it  may  legally  be  contracted  for.""' 

It  is  only  when  the  contract  prima  facie  calls  for  the 
doing  of  an  act  which  would  be  in  direct  contravention 
to  a  Sunday  statute,  that  it  can  be  said  to  be  an  invalid 

These  distinctions,  however,  arc  not  made  in  other 
jurisdictions,"^  although  the  courts  have  gone  so  far  as  to 

'<  Chapter  3,  Article  1,  Sec-  provided  that  such  above  men- 
tion 10,  of  the  Code  of  Ordinances  tioned  entertainments  shall  be  so 
of  the  City  of  New  York:  "Sun-  given  as  not  to  disturb  the  public 
day  observance:  No  person  shall  peace  or  amount  to  a  serious 
exhibit  on  the  first  day  of  the  interruption  of  the  repose  and 
week,  commonly  calUxl  Sunday,  religious  liberty  of  the  cora- 
to  the  public,  in  any  building  .  .  .  nuinity.  ,  .  ." 
the  performance  of  any  tragedy,  ''■'  Bergcre  v.  Park^^r  (1914),  170 
comedy,  opera,  ballet,  farce  ...  S.  W.  (Tex.)  808.  A  contract 
or  rope  dancers;  but  nothing  made  through  a  booking  agent 
herein  contained  shall  be  deemed  for  services  upon  Sunday  only 
to  prohibit  at  any  such  place  or  irhcre  siich  services  might  be  laic- 
placeson  the  first  day  of  the  week,  fully  rendered  on  that  day,  is  a 
commonly  called  Sunday,  .sacred  valid  contract.  See  also:  Wirth  v. 
or  other  educational,  vocal  or  Ccdhnun  (1002),  64  Nebr.  316; 
instrumental  concerts,  lectures,  So  N.  W.  78.^. 
addresses,  recitations  and  singing,  •*  Stewart  v.  Thayer  (1897),  16S 



attempt  to  split  up  or  sever  the  contract;  but  where  they 
have  been  unable  to  do  so,  and  have  been  constrained  to 
hold  the  contract  entire  and  indivisible,  they  have  de- 
clared it  invalid. ^^ 

The  Federal  courts  also  hold  such  contracts  mvalid, 
where  they  are  made  in  contravention  of  a  state  statute.^^ 

But  such  contracts  must  be  Uberally  construed  with  a 
view  to  their  enforcibility.  And  where  a  contract  was 
made  between  the  manager  of  a  music  hall,  and  a  per- 
former, whereby  the  latter  agreed  to  work  ''every  even- 
ing" in  the  week,  it  was  held  that  Sunday  being  a  dies  non 
in  theatrical  matters,  the  contract  did  not  contemplate 
Sunday  performances.^^ 

A  contract  providing  for  the  posing  of  the  actor  on 

Mass.  519;  47  N.  E.  420.  Plain- 
tiff sued  to  recover  for  actual 
work  performed  in  playing  witli 
a  band  of  musicians  at  defend- 
ant's resort.  Some  of  the  work 
was  performed  on  Sunday.  Held 
that  the  statute  against  Sunday 
violations  precluded  a  recovery, 
as  the  entire  contract  was  void.  . 
*^  The  Fountain  Sq.  Theatre  v. 
Evans  (1896),  4  Ohio  Dec.  151. 
Plaintiff  brought  suit  for  breach 
of  a  contract  to  jierform  at  its 
theatre.  Defendant  set  up  as  a 
demurrer  that  the  dates  of  per- 
formance stipulated  in  the  con- 
tract included  a  Sunday.  The 
court  hold  that  as  the  contract 
was  entire,  this  went  to  the  es- 

sence of  it,  and  the  same  was 

*'  La  Crandall  v.  Ledbitter 
(1908),  159  Fed.  (C.  C.  A.)  702. 
A  contract  providing  for  per- 
formances of  artists  on  Sunday  in 
theatres  where  admission  fees 
are  charged  is  unenforceable  in 
the  state  of  Texas  in  so  far  as  it 
includes  performances  on  Sunday 
under  Article  199  of  the  Texas 
Penal  Code. 

*»  KcUi/  V.  London  Pavilion 
(Eng.)  (1897),  77  L.  T.  21.').  Ac- 
cordingly where  the  artist  sang 
at  a  social  club  on  Sunday  even- 
ing without  pay,  this  was  held 
not  to  l)e  a  performance  which 
would  breach  the  contract. 



Sunday  i.s  void  in  its  entirety.  Where  a  contract  provides 
for  the  entire  services  of  the  actor,  the  producer  may  not 
regard  a  refusal  of  the  actor  to  pose  on  Sunday  as  a 
breach  of  the  contract. 

Section  42. — Services  "  actually  performed." 

Where  the  actor  is  hired  for  a  definite  term,  the  pro- 
ducer is  bound  to  furnish  him  with  employment.  To  in- 
sert in  the  contract  that  the  actor  will  receive  pay  only 
"when  services  arc  rendered"  or  "when  he  shall  actually 
perform"  does  not  relieve  the  manager  of  responsibility 
for  the  entire  contract  period. '•*°  This  is  the  later  doctrine, 
and  seems  to  have  overruled  the  earlier  cases  which  per- 
mitted the  manager  to  provide  an  actor  with  work  when- 
ever he  felt  inclined  that  way.^^    Although  in  these  deci- 

^Dixerj  v.  .1.  //.  Wood  Prod. 
Co.  (1915),  168  A.  D.  (X.  Y.) 
337;  154  X.  Y.  Supp.  49;  aff'g  88 
Misc.  (X.  Y.)  506;  151  N.  Y. 
Supp.  224.  Here  the  plaintifT 
wa.s  engaged  for  a  definite  period, 
and  agreed  not  to  work  for  any 
other  firm,  i)crson,  or  corporation 
during  tlie  term  of  the  contract. 
He  was  to  be  paid  the  sum  of 
S6(X)  a  week  during  each  and 
every  week  when  his  services 
were  actually  rendered.  The 
defendant  was  given  work  for 
one  week  only.  He  sued  for  the 
remainiler  of  the  contract  period. 
The  court  held  that  the  phra.><e 
"when  .services  are  rendered"  in- 

tended to  mean  no  more  than 
the  due  performance  of  the  con- 
tract of  employment  by  the 
plaintifT.  If  the  plaintifT  was 
ready  and  willing  to  {x^rform  the 
defendant  was  hound  to  pay  him 
for  the  entire  contract  period. 

'•"  Pollock  V.  ^hubai  (1911),  146 
A.  D.  (X.  Y.)  628;  131  X.  Y. 
Supp.  386.  On  apjx'al  from  order 
denying  motion  for  judgment 
on  the  pleadings.  Order  re- 
versed and  motion  granted.  Con- 
tract provided  that  plaintifT  was 
to  be  paid  "for  each  and  every 
week  that  plaintilT  pul)licly  ap- 
peared and  ix?rformed."  lui- 
gagement    was    for    a    theatrical 



sions  the  courts  lay  stress  upon  the  language  used  in  the 
contract,  it  is  apparent  that  the  policy  of  the  coui't  wher- 
ever possible,  is  to  hold  the  defendant  under  such  a  con- 
tract bound  to  furnish  the  employment  and  to  pay 

This  kind  of  a  contract  is  similar  to  the  contract  which 
provides  "no  play,  no  pay,"  and  was  intended  by  the 
managers  to  give  them  the  privilege  of  paying  for  actual 
performances  only.  The  EngUsh  courts  construed  that 
expression  to  mean  that  the  actor  would  not  be  entitled 
to  compensation  where  he  "could  not"  play  or  where  he 
"would  not"  play,  but  that  the  manager  was  at  all  events 
bound  to  pay  when  the  actor  was  ready,  able  and  willing 
to  perform.^^ 

season.  Held  that  defendant 
was  under  no  obligation  to  pay 
plaintiff  unless  he  publicly  ap- 
peared and  performed  even 
though  his  failure  to  so  appear 
was  defendant's  refusal  to  fur- 
nish plaintiff  with  work. 

92  King  V.  Will  J.  Block  Amuse- 
ment Co.  (1908),  115  N.  Y.  Supp. 
243;  aff'd  in  132  A.  D.  (N.  Y.) 
925;  116  N.  Y.  Supp.  1139.  De- 
fendant engaged  plaintiff  as  an 
actress  for  thirty  weeks  and  for 
a  greater  period  if  the  production 
was  a  success;  plaintiff  was  to 
select  a  play  which  would  be 
Batisfactory  to  defendant.  I'lain- 
tiff  selected  a  play  and  dpfendant 
accepted  it.    Plaintiff  was  ready 

and  willing  to  perform  but  de- 
fendant failed  and  refused  to 
furnish  employment  to  the  plain- 
tiff. Held  that  plaintiff  was  en- 
titled to  recover  as  damages, 
compensation  agreed  to  be  paid 
for  thirty  weeks  less  any  moneys 
earned  by  plaintiff  during  con- 
tract period.  Held  further  that 
term  "actuallt/  performed"  as 
used  in  agreement  did  not  excuse 
defendant  where  by  its  own 
wrongful  act  it  prevented  plain- 
tiff from  actually  performing. 

^^Gilbnrs  v.  Jefferson  (Eng.) 
(1902),  Strong  on  "Dramatic  and 
Musical  Law,"  3d  Ed.,  p.  29. 
"Xo  play,  no  pay,"  meant  either 
"you  won't  play,"  or  "you  can't 



Where  performance  is  a  condition  precedent  to  pay- 
ment, fullilhnent  must  be  shown  in  order  to  secure  a  re- 
covery; but  when  performance  is  prevented  or  rendered 
impossible  by  the  sickness  or  death  of  the  actor,  a  re- 
covery may  be  had  on  a  quantum  meruit.^* 

Section  43. — Substantial  performance. 

The  actor  who  has  been  engaged  for  a  stated  period, 
and  has  rendered  his  services  during  its  entire  length,  is 
entitlc^d  to  recover  for  the  full  period.  His  right  is  not 
affected  by  reason  of  the  fact  that  for  a  short  interval 
within  that  period  the  producer  had  no  work  for  him  and 
the  actor  was  perforce  obliged  to  remain  idle.^^ 

play,"  and  did  not  give  the 
tlieatre  manager  the  right  to  ar- 
bitrarily rescind  the  contract. 

»*  Wolfe  V.  Howes  (1S59),  20 
N.  Y.  197.  See  in  this  connection 
Sections  10  and  14. 

'0  Sterling  v.  Bock  (1SS7),  37 
Minn.  29;  32  X.  W.  8G5.  The 
action  \v;vs  brought  against  the 
defendatits  to  recover  for  services 
rendered  by  the  plaintifif  as  an 
actress  under  a  written  contract. 

Held  that  the  evidence  sus- 
tained the  finding  that  the  plain- 
tiff performed  the  services  con- 
tracted for,  although  she  did  not 
act  in  any  play  during  the  week 
in  question,  not  having  been 
called  upon  to  do  so.  The  con- 
tract was  for  the  services  of  an 

actress  for  a  period  of  about  six 
months  at  a  stipulated  price  per 
week,  and  it  was  immaterial  that 
during  a  particular  week  her 
active  service  was  not  required. 
Coghlan  v.  Stetson  (1SS4),  19 
Fed.  (C.  C.)  727.  Plaintiff  was 
engaged  to  appear  at  the  Fifth 
Avenue  Theatre  and  to  api)car 
as  leading  man  at  SlOO  a  per- 
formance for  seven  performances 
each  week.  After  playing  for 
five  weeks,  he  was  not  assigned 
to  any  part  for  three  weeks. 
Subsequently  he  appeared  in 
Boston  under  the  defendant's 
auspices,  and  then  brought  this 
action  to  recover  S2,100  for  the 
aforesaid  three  weeks  during 
which  he  was  idle. 



The  actor  is  also  entitled  to  recover  for  the  time  actually 
spent  in  traveUing  from  one  place  of  performance  to 

And  where  one  actor  in  a  troupe  was  substituted  for 
another,  it  was  held  the  services  were  such  as  to  permit 
a  recovery .^^ 

But  where  two  performers  out  of  thirteen  and  twelve 
musicians  out  of  thirty  are  missing,  there  is  a  failure  of 
compHance  with  the  terms  of  the  agreement.^^ 

Held  that  plaintiff  waived  no 
rights  by  appearing  in  Boston  and 
that  there  must  be  a  reasonable 
construction  of  the  contract — 
that  it  mattered  nothing  whether 
he  sued  as  damages  or  wages, 
since  he  asked  for  a  specified  sum 
of  money,  pleaded  all  the  facts, 
and  defendants  suffered  no  sur- 
prise. Plaintiff  was  given  judg- 

9' Day  V.  Klnw  (1908),  112 
N.  Y.  Supp.  1072.  The  defend- 
ants agreed  to  employ  plaintiff 
f(jr  twenty-five  consecutive  weeks 
and  pay  him  a  stii)ulatcd  salary 
per  week.  Plaintiff  spent  two 
weeks  during  tlie  twenty-five 
weeks  in  travelling  to  certain 
theatres  to  perform  pursuant  to 
defendant's  instructions.  Action 
brought  to  recover  salary  for 
two  weeks,  also  certain  railroad 
faro.  .Judgment  for  plaintiff  af- 

97  Columbian  Lyceum  Bureau  v. 
Sherman.  (1909),  19  N.  D.  58;  121 
N.  W.  765.  Plaintiff  agreed  to 
furnish  six  entertainments  to  de- 
fendant, stipulating  that  it  was 
not  to  be  liable  if  artists  failed  to 
appear  because  of  illness  or  other 
unavoidable  cause,  also  that  it 
might  at  its  option  substitute 
another  artist.  It  was  held  that 
plaintiff  could  recover  contract 
price  where  because  of  illness  of 
the  artist  who  had  been  originally 
booked  it  substituted  another 

^'Charley  v.  Potthoff  (1903), 
118  Wis.  258;  95  N.  W.  124.  The 
fact  that  defendant  made  some 
of  thfe  payments  required  to  be 
made  under  the  contract  did  not 
constitute  a  waiver  of  his  right 
to  counterclaim  for  damages  for 
inferior  performances.  Defend- 
ant could  permit  plaintiff  to 
j)roceed  with  defective  perform- 



Section  44. — Anticipatory  breach. 

W  here  an  aetor  wliu  lias  contracted  for  hi.s  .services 
for  a  period  is  notified,  before  the  commencement  of 
such  period,  that  he  will  not  be  required,  he  need  not  go 
through  the  idle  ceremony  of  presenting  himself  for  per- 
fonnance  or  tendering  his  services.  This  is  especially 
of  importance  since  the  services  may  have  been  con- 
tracted to  be  given  at  a  distant  place.^^ 

Once  the  contract  is  breached,  and  treated  as  such  by 
the  other  party,  it  cannot  be  kept  ahve  by  either  party.  ^^ 

ances  without  waiving  his  right 
to  damages  since  to  have  pre- 
vented tlie  continuance  of  such 
performances  would  have  done 
serious  injury  to  him  (defendant 
had  made  an  advance  sale  of 
seats,  etc.). 

^Goddard  v.  Morrissey  (1899), 
172  Mass.  594;  53  N.  E.  207. 
PlaintilT  and  his  company  were 
engaged  to  perform  for  defendant 
for  one  week.  Before  date  of 
first  performance  plaintiff  was 
notified  that  because  of  defend- 
ant's inal)ility  to  secure  hall, 
plaintifT  and  his  company  would 
not  be  re(iuired.  Jury  gave  ver- 
dict for  less  tlian  amount  agreed 
to  be  paid  plaintiff  for  week's 
work,  although  plaintifT  did  not 
earn  any  other  moneys  during 
that  week.  On  appeal  by  de- 
fendant it  is  held: 

(1)  It  was  not  neces.sar>'  for 
plaintifT  and  company  to  present 
themselves  ready  to  work  on  the 
day  originally  agreed  upon  where 
he  wiis  notified  before  that  day 
that  his  services  would  not  be 

(2)  The  contention  that  jur>' 
should  have  found  for  full  amount 
or  for  nominal  amount  was  in- 
valid. Defendant  was  not 
harmed  by  such  finding. 

^<*' Grcenwall  Thcat.  Circ.  v. 
Markou'itz  (1904),  97  Tex.  479; 
79  S.  W.  10G9.  The  manager  of 
a  theatre,  after  he  is  informed  of 
his  emploj'er's  intention  to  breach 
the  contract,  cannot,  where  he 
himself  has  treated  the  contract 
as  breached,  keep  it  alive,  but 
must  sue  on  the  breach.  Sec  also: 
Grnu  v.  McVickar  (1S74),  8 
Biss.  7;  Fed.  Cas.  No.  570S. 



Section  45. — Exposure  to  obscenity,  ridicule,  degrada- 
tion, etc. 

WTiere  the  actor  has  contracted  to  play  in  any  part 
which  may  be  assigned  to  him,  he  is  bound  by  the  con- 
tract, and  must  obey  the  instructions  of  the  director 
in  so  far  as  they  are  reasonable  and  consistent  with  his 
skill  and  reputation  as  an  actor.  And  in  such  a  contract 
an  actress  will  not  be  permitted  to  maintain  the  defense 
that  she  has  been  ordered  to  don  an  immodest  costume.^" 

i»i  Duff  V.  Ricssell   (1892) ,   14         Morrison  v.  Hurtig  &  Seaman 
N.  Y.  Supp.  134;  aff'd  on  opinion 
below  in  133  N.  Y.  678;  31  N.  E. 

Dis  Debar  v.  Hoeffle,  N.  Y.  Law 
Journal,  vol.  4,  1475.  Plaintiff 
sued  for  damages  in  that  defend- 
ant had  published  her  picture 
representing  her  in  the  garb  of 
Cupid.  Plaintiff  was  an  actress, 
and  had  contracted  to  appear  in 
a  plaj^,  and  assume  any  part 
assigned  to  her.  Judge  McAdam 
held  that  having  contracted  to 
appear  thus,  it  was  her  duty  to 
dress  in  any  i)art  and  in  any  cos- 
tume assigned  to  her,  and  she 
could  not  complain.  That  it 
was  one  of  the  incidents  of  an 
actress's  life  to  dress  in  costumes 
that  were  not  always  the  height 
of  modesty,  and  that  she  had 
no  more  cause  for  complaint  than 
an  artist's  model  would  have 
because  slio  might  be  recjuircd  to 
pose  in  an  immodest  costume. 

(1910),  198  N.  Y.  352;  91  N.  E. 
842.  Plaintiffs  (husband  and 
wife)  were  engaged  to  act  for 
defendants.  The  plaintiffs  agreed 
to  furnish  "at  their  own  cost 
and  expense,  all  necessary  cos- 
tumes, wigs,  shoes,  boots,  tights, 
stockings  and  gloves  in  and  about 
their  performances,"  to  "pay 
strict  regard  to  make-up  in  the 
dressing  of  characters,"  and  to 
"abide  by  and  conform  to  all 
rules  and  regulations  now  made 
or  hereafter  to  be  made."  De- 
fendants requested  Mrs.  Mor- 
rison to  change  the  costume 
which  she  was  then  using  and  in 
place  thereof  wear  a  "military 
costume."  That  was  a  costume 
in  "tights"  without  skirts.  Held 
that  it  was  error  to  exclude  con- 
versations had  at  the  time  Mrs. 
Morrison  was  requested  to  change 
costumes,  for  the  contract  con- 
templated future  discussions  be- 



She  is  bound  al)solutely  by  her  contract,  and  the  only 
way  in  which  an  actress  can  avoid  the  predicament  of 
having  to  wear  a  costume  repugnant  to  her  sense  of 
modesty,  is  by  contracting  with  the  manager.  Unless 
she  so  contracts  she  is  subject  to  discharge  for  which  she 
cannot  recover. '°- 

tween  the  parties  upon  the  sub- 
ject of  costumes  and  that  such 
conversation  would  aid  the  jury 
in  decidinn  wliether  tlie  reguhi- 
tion  of  defendants  was  a  reason- 
able one. 

See  alio  iti  this  connection: 
Baumcistcr  v.  Markham  (1897), 
101  Ky.  122;  39  S.  W.  844;  41 
S.  W.  816.  An  actress  while  on 
her  way  to  the  theatre  to  perform 
was  injured  through  negligence 
of  defendants.  Tlie  lower  court 
refused  to  charge  the  jury  as 
follows,  which  was  an  alleged 
error  of  the  court:  "The  court 
instructs  the  jury  that  if  they 
believe  from  tlie  evidence  that  a 
part  of  the  business  of  the  plain- 
tiff was  to  go  upon  the  stage  and 
exhibit  her  legs  in  such  manner  as 
is  indecent  in  fact  and  immoral 
in  its  tendencies,  then,  in  that 
event,  the  loss  of  opportunity  to 
earn  money  in  such  employment 
can  form  no  basis  for  recovering 
damages."  The  appellate  court 
sustained  the  lower  court's  refusal 
to  so  charge  and  said  in  support 

of  its  position:  "It  may  be,  as 
testified  by  appellant,  such  per- 
formance retjuires  the  to 
'show  her  liml)s  in  silk  stock- 
ings,' but  while  it  is  tolerated  by 
law  and  patronized  openly  and 
freely  by  the  public,  the  court 
cannot  arbitrarily  outlaw  those 
who  earn  a  livelihood  in  that 

^"^  Rafalo  V.  Eddstein  el  al. 
(1913),  SO  Misc.  (N.  Y.)  153;  140 
N.  Y.  Supp.  107G.  A  part  was 
a.ssigned  to  one  of  the  plaintiffs 
(the  wife)  which  she  refused  to 
play  upon  the  ground  that  such 
part  was  "artistically  unfit"  for 
her.  Defendants  w  re  entitled 
to  a.ssign  such  part  to  the  wife. 
Defendants  asked  her  to  recon- 
sider her  refusal.  The  following 
day  the  wife  telephoned  that 
she  was  willing  to  play  the  part 
but  plaintiff  refused  to  further 
employ  her.  Held  that  the  re- 
{juest  on  the  part  of  defendants 
to  reconsider  her  refusal  did  not 
necessarily  constitute  a  waiver 
of  the  breach  of  the  contract,  the 



Nor  may  she  object  to  portraying  a  lewd  or  immodest 
character,  unless  she  has  reserved  that  privilege  to  herself 
by  contract.  The  theatre  is  an  institution  founded  for 
"the  imitation  of  virtue  and  the  exposure  of  vice  and 
folly."  Of  necessity  somebody  must  play  the  villain,  the 
adventuress,  the  harlot,  just  as  one  plays  the  hero  and 
the  innocent  heroine.  And  the  producer  has  the  right  to 
call  upon  any  member  of  his  troupe  to  play  the  dis- 
agreeable, as  well  as  the  desirable  parts,  subject  to  cer- 
tain limitations  which  will  be  hereafter  discussed. 

The  producer  may  not  demand  that  the  actor  travel 
an  unreasonable  distance  to  perform,  ^"^  or  endanger  his 
life  and  hmb,^°^  unless  he  has  specifically  contracted  so 

court  holding  that  such  question 
should  have  been  submitted  to 
the  jury. 

■"'  Gath  V.  Inter  stale  Amusement 
Co.  (1912),  170  111.  App.  614. 
Plaintiffs  were  engaged  to  per- 
form a  vaudeville  act  for  five 
weeks  in  Montgomery,  Ala.,  Little 
Rock,  Ark.,  Fort  Worth,  Dallas 
and  Houston,  Texas,  and  "ad- 
jacent" towns.  Defendants,  seek- 
ing a  pretext  to  break  the  con- 
tract, wired  plaintiffs  to  appear 
in  Beaumont  which  is  300  miles 
away.  Held  that  the  word  "ad- 
jacent" did  no(  convey  any 
.such  meaning  and  tiiat  this  was 
an  unreasonable  interpretation 
of  the  contract. 

">*IIanlin  v.  Wallers  (1893),  3 

Col.  App.  519;  34  Pac.  686.  De- 
fendant, manager  of  a  theatre  in 
Pueblo,  was  also  an  innkeeper 
and  boarding-house  keeper.  He 
engaged  plaintiff  to  work  in  his 
theatre  and  boarded  and  lodged 
her  at  his  house.  Becoming 
terrified  at  the  actions  of  de- 
fendant's wife,  plaintiff  was  com- 
pelled to  leave. 

Defendant  kept  her  trunk  and 
valise  and  plaintiff  was  forced  to 
replevy  them. 

Held  that  defendant  having 
been  the  cause  of  plaintiff's  tlc- 
parture,  the  fault  was  with  him, 
and  he  would  not  be  permitted 
to  say  that  her  indebtedness  to 
him  of  her  board  was  not  paid. 
The  replevy  was  sustained. 



to  do  and  has  accepted  his  emplojmient  with  that  under- 

The  producer  may  not  demand  that  the  actor  or  actress 
do  an  act  whicli  is  obscene  or  lowd,  for  that  is  clearly 
against  public  ])()licy  and  is  ground  for  rescission  of  the 
contract.  But  it  would  be  for  the  jury  to  say  what  con- 
stituted such  conduct. '"" 

Nor  may  the  ])r()ducer  insist  that  the  actor  play  a  i)art 
inferior  to  that  for  which  he  was  hired. 

Where  the  plaintiff  was  employed  as  a  "premier  second- 
danseuse,"  it  was  held  that  she  was  justified  in  refusing 
to  dance  in  parlor  dress  with  figurantes  of  the  theatre.'"' 
So,  too,  where  a  dancer  was  engaged  as  a  "i)reniiere  dan- 
seuse  etoile"  and  had  been  asked  to  dance  an  inferior 
part  by  the  stage  management.'"^  And  a  bass  or  baritone 
in  a  church  choir  could  not  be  compelled  to  sing  an  in- 
ferior part."^    In  one  case,  where  a  "star"  actress  was 

O'Connor  v..  Armour  Packing 
Co.  (1!)08),  158  Fed.  (C.  C.  A.) 
241.  (Jeiierally  on  tlie  que.stion 
of  expo.siiig  the  servant  to  dis- 

'»»Zi//7z  V.  Tooveij  (1890),  9 
N.  Y.  Supp.  439.  The  phiintiffs 
(husl)and  and  wife)  were  engaged 
to  perforin  at  defendant's  place 
of  anuisenient,  the  luisband  to 
do  the  "fire 'act"  and  the  wife, 
among  other  things,  to  walk  on 
broken  glass.  The  action  was 
i)n)iight  for  wrongful  discharge, 
defendant  claiming  tliat  the  wife 
failed  to  walk  and  tlance  on 

in  the  manner  provided  in  the 
contract,  lldd  that  the  wife 
substantially  performed  the  con- 
tract by  walking  and  jumping 
on  the  glass  tiiough  she  did  not 
dance  on  it. 

"*y?«/flZo  V.  Edchtein  (1913), 
SO  Misc.  (X.  Y.)  153;  140  N.  Y. 
Supp.  1076;  Morrison  v.  Ilurlig 
(1910),  198  X.  Y.  3.j2;  91  X.  K. 

^°' Baron  v.  Placide  (1852),  7 
La.  Ann.  229. 

"^^''  lioscric  v.  Kiralfii,  12  Phila. 
(Pa.)  209. 

' "»  Warner  v.    The   Rector  and 



asked  to  play  in  a  part  assigned  to  her  by  the  theatre 
manager,  it  was  held  that  the  evidence  showed  a  custom 
or  usage  in  the  theatrical  profession  by  which  the  "star" 
had  the  pri\^lege  of  selection  of  such  parts  as  she  might 
shine  into  good  advantage. "° 

In  the  case  of  Violette  v.  Rice,^^^  the  plaintiff,  an  actress, 
contracted  "to  render  services  at  any  theatres."  It  was 
held  that  evidence  tending  to  show  that  the  word  ''serv- 
referred  to  particular  kinds  of  services  only,  was 


Trustees,  etc.  (1882),  1  City  Court 
(N.  Y.),  419.  Plaintiff  was  em- 
ployed to  sing  a  bass  or  baritone 
part  in  a  choir  of  the  defendant's 
church.  The  defendant  directed 
plaintiff  to  take  a  subordinate 
part  which  he  refused.  Held 
plaintiff  could  recover  for  breach 
of  the  contract. 

Briscoe  v.  Lilt  (189G),  19  Misc. 
(N.  Y.)  5;  42  N.  Y.  Supp.  90S. 
"The  employe  is  only  required 
to  engage  in  service  of  a  character 
and  grade  equal  to  that  from 
which  he  was  discharged,  and 
nothing  inferior  in  rank  or  de- 

'^^  Kelly  V.  Caldwell  (1832),  4 
La.  38. 

For  miscellaneous  non-theatrical 
cases  see:  Wolf  Cigar  Stores  x. 
Kramer  (1908),  109  S.  W.  (Tex.) 
990;  Development  Co.  v.  King 
(190H),  101  Fed.  (C.  C.  A.)  91; 
Davis  V.  Dodge  (1908),  12G  A.  D. 

(N.  Y.)  469;  110  N.  Y.  Supp.  787; 
Marx  V.  Miller  (1901),  134  Ala. 
347;  32  So.  765;  The  Sarah,  1 
Stuart  Adm.  Rep.  (Quebec)  87; 
Drummond  v.  Atty.  Gen'l  (Eng.), 
2  H.  L.  Cas.  837. 

^^^  Violette  v.  Rice  (1899),  173 
Mass.  82;  53  N.  E.  144.  An  em- 
ployment contract  provided  that 
plaintiff  was  "to  render  services 
at  any  theatres"  and  "to  conform 
to  and  abide  by  all  the  rules  and 
regulations  adopted"  by  defend- 
ant "for  the  government  of  said 
companies."  On  the  back  of  the 
contract  were  the  rules  of  the 
company,  one  of  them  reading: 
"No  person  shall  .  .  .  refuse  a 
part  allotted  to  him  or  her  ])y  the 
manager"  on  certain  penalties 
including  the  right  of  discharge. 
Held  that  evidence  that  the  word 
".service"  referred  to  particular 
services  was  inadmissible. 



inadmissible,  as  varying  the  terms  of  the  \\Titten  contract. 
This  rule  seems  to  be  in  harmony  with  the  language  of 
the  dissenting  opinion  of  Mr.  Justice  Bijur  in  Rafalo  v. 
Edehtcin.'^^-  But  in  another  case,  involving  the  dis- 
charge of  a  traveUng  salesman,  parol  evidence  was  held 
admissible  to  ascertain  the  duties  of  the  plaintiff.''^  And 
in  another  case  it  was  held  that  it  was  for  the  jury  to  say 
what  the  duties  of  a  stage  manager  were.^^'* 

On  the  other  hand,  an  actress  who  is  engaged  for  an 
inferior  part  or  in  the  capacity  of  an  understudy,  may 
not  demand  that  the  producer  permit  her  to  perform 
when  the  principal  becomes  ill."^ 

''^Rafalo  V.  Edelstein  (1913), 
80  Misc.  (N.  Y.)  153;  140  X.  Y. 
Supp.  107G. 

"'  Broicn  v.  Baldwin  &  Gleason 
(1S91),  13  X.  Y.  Supp.  893. 
Phiiiitill  alleged  a  wTongful  dis- 
charge. He  was  hired  as  a  travel- 
ing salesman,  and  at  the  trial 
defendants  offered  testimony  to 
show  that  it  was  a  custom  in  the 
trade  for  a  salesman  to  take  out 
a  line  of  samples.  Said  Judge 
Pryer:  "Doubtless  the  learned 
trial  judge  rejected  the  evidence 
on  the  ground  that  a  written 
contract  cannot  he  added  to  or 
in  any  way  altered  by  oral  testi- 
mony. By  the  contract  the  re- 
spondent was  '  to  serve  tvs  travel- 
ing salesman;'  but  what  were 
liis  duties  as  such  is  not  defined, 
nor  does  the  law  determine  them. 

Parol  evidence  of  trade  usage 
ascertaining  those  duties  was 
therefore  in  no  sense  contradic- 
tory of  or  inconsistent  with  the 
terms  of  the  written  instrument, 
but  tended  only  to  show  the  full 
meaning  and  effect  of  the  words 
'  traveling  salesman.'" 

"^A'as/t  V.  Krieling  (1899),  56 
Pac.  2G0;  aff'd  123  Cal.  xviii. 

^^'-Neicman  v.  Gatli  (1907),  24 
(Eng.)  T.  L.  R.  18.  Plaintiff,  an 
actress,  was  engaged  for  the  run 
of  a  play  to  act  as  understudy  to 
the  principal  character.  Plaintiff 
received  a  weekly  salar3\  She 
agreed  not  to  appear  at  any  other 
place  of  amu.sement  during  the 
term  of  the  contract  without 
defendant's  consent.  During  the 
run  of  the  play  the  principal 
actress  left  the  show.      Plaintiff 



On  the  refusal  of  the  actor  to  play  the  part  assigned  to 
him,  the  producer  must  give  actual  notice  of  discharge,  ^^® 
but  if  he  fails  to  do  so  and  continues  him  in  his  employ, 
it  becomes  a  question  of  fact  for  the  jury  whether  there 
was  condonation.  ^^^ 

Section  46. — ^Renewal  of  the  contract — modification. 

Where  nothing  is  said  by  the  parties,  and  the  actor 
under  contract  with  the  producer,  continues  in  the  em- 
ployment, the  law  will  imply  a  renewal  of  the  original 
contract  for  an  equal  length  of  time  up  to  one  year,  and 
upon  the  same  terms.  ^^^ 

brought  action  for  breach  of  con- 
tract for  failure  of  defendant  to 
permit  her  to  act  in  the  principal 
part.  Held  that  under  the  con- 
tract no  right  was  conferred  upon 
plaintiff  to  play  the  part;  that 
the  contract  merely  imposed  the 
obligation  on  the  part  of  plaintiff 
to  play  if  called  upon  so  to  do  by 

^^^Slanding  v.  Brady  (1913), 
157  A.  D.  (N.  Y.)  657;  142  N.  Y. 
Supp.  656.  Where  the  contract 
provided  that  plaintiff  was  to  play 
such  parts  as  were  assigned  to 
him  and  further  that  defendant 
could  annul  the  contract  during 
rehear.sals.  Held  that  \or(lict  for 
plaintiff  .should  be  reinstated 
when  although  there  was  evi- 
dence that  plaintiff  refused  to 
play  part  assigned   to  him,  yet 

defendant  failed  to  give  notice 
of  discharge  to  him. 

^"  Rafalo  V.  Eddstein  (1913), 
80  Misc.  (X.  Y.)  153;  140  N.  Y. 
Supp.  1076. 

^^^  Lorenz  v.  Bartuschck,  City 
Court  of  the  City  of  New  York, 
unreported,  judgment  roll  filed 
May  18,  1916.  Plaintiff  was  a 
ballet-mistress  emploj'ed  by  de- 
fendant in  Berlin.  Defendant 
contracted  with  Mr.  Dillingham 
to  produce  his  ice-ballet  at  the 
New  York  Hipprodrome,  and 
plaintiff  was  sent  over  with  the 
ballet  in  July,  1915,  and  after  a 
rehearsal  period  of  six  weeks 
entered  upon  her  duties.  In 
November,  1915,  defendant  and 
Dillingham  renewed  their  con- 
tract and  extended  the  .same  for 
four   months,   with   renewal   op- 


Where  the  orij^iiial  contract  was  fur  a  graduated  scale 
of  compensation  for  several  years,  the  contract  will  be 

tions  which  DilhuKhiun  exorcised 
down  to  July.  The  pluiiitilT 
contiiiuctl  to  i)orforin  her  duties, 
but  after  Jiuumry  Hi,  1916>  de- 
fendant refused  to  pay  her, 
clainiinf!;  that  slie  was  no  longer 
in  his  employ,  but  in  the  employ 
of  Dillingham,  as  no  express 
contract  of  renewal  had  been 
made  with  her  by  the  defendant. 

PlaintitT  went  to  the  jury  and 
received  a  verdict  for  .?  1,000,  the 
full  amount  sued  for,  which  was 
sustained  by  the  Appellate  Term 
without  opinion. 

(1)  Plaintiff  contended  that 
where  the  original  term  of  em- 
ployment had  expired  and  she  was 
pormitt(>d  to  continue  her  duties, 
the  contract  wa.s  renewed  by 
oix?ration  of  law  upon  the  same 
terms.  [Labatt  on  Master  &  Serv- 
ant, 2d  Ed.,  Section  230;  Adams 
V.  Fitzpalnck,  125  N.  Y.  121; 
Wood  V.  A////CT,  78  N.  Y.  iMisc 
377;  Douglas  v.  Merchants'  Ins. 
Co.,  118  N.  Y.  484;  Huntington  v. 
Claflin,  38  N.  Y.  182;  Vail  v. 
Jirscij  Co.,  .T2  Barb.  (N.  Y.)  .')()!; 
Lichtenstein  v.  Fisfwr,  87  Hun 
(N.  Y.),  397.)  And  the  compensa- 
tion was  presumed  to  be  the 
same.      (Labatt,    Section    232.) 

Besides  which  there  wa.s  evidence 
to  indicate  that  the  contract  had 
been  extended  by  parol.  {Hudson 
lildg.  Co.  V.  Compagnie  Gen. 
Transatlantique,  169  N.  Y.  App. 
Div.  600;  Homer  v.  Guardian 
Mul.  Life  Ins.  Co.,  67  N.  Y.  478.) 

(2)  The  contract  also  provided 
that  "In  of  all  disputes  ari.s- 
ing  under  this  contract  both  par- 
tics  shall  submit  to  the  jurisdic- 
tion of  the  Amstgericht,  Berlin 
Mitte  or  Landoricht  I  in  Ber- 
lin. ..."  Plaintiff's  contention 
was  that  this  clause  did  not  oust 
the  American  courts  of  jurisdic- 
tion. {M cache m  v.  Jamestown 
R.  R.  Co.,  211  N.  Y.  346;  Engel  v. 
Shuhert,  166  X.  Y.  App.  Div.  394.) 

(3)  Evidence  of  the  contract 
between  defendant  and  Dilling- 
ham by  the  original  instrument 
was  properly  admissible.  {Miller 
V.  Laarcnce,  13  X.  Y.  Misc.  130.) 

Montague  v.  Flockton  (Eng.) 
(187.3),  L.  R.  16  Eq.  189.  A  con- 
tract which  renews  a  contract 
for  services  for  another  season 
is  binding  for  the  same  length 
JUS  the  iirst  contract. 

De  Gcllcrt  v.  Poole  (1888),  2 
N.  Y.  Supp.  6.-)l. 

For    miscellaneous    cases   see: 



deemed  renewed  for  one  year  upon  the  same  scale  of 
compensation  provided  for  in  the  last  year  of  the  original 
contract.  ^^^ 

It  often  happens  that  after  an  actor  finishes  an  en- 
gagement for  a  long  term  he  is  asked  to  continue  it  for  a 
short  period,  either  to  complete  the  run  of  a  play  or  to 
finish  a  picture.  In  such  case  a  breach  by  the  manage- 
ment will  entitle  the  actor  to  sue  upon  the  additional 
period  as  if  the  same  were  a  part  of  the  period  embraced 
in  the  original  contract. ^-° 

Whether  the  written  contract  could  be  modified  by  a 
verbal  agreement,  is  a  question  for  the  jury.^-^ 

ment.  Held  that  the  salary  for 
the  ensuing  season  if  the  option 
was  exercised  would  be  that  pay- 
able for  the  third  year  and  that 
the  contract  was  not  void  for 

120  Wheeler    v.    Woods    (1909) , 

Morris  v.  Briggs  (1915),  179 
S.  W.  (Mo.)  783;  Curtis  &  Dodd  v. 
Struthers  (1915),  154  N.  W.  (la.) 
872;  Dunlon  v.  Derby  Desk  Co. 
(1904),  186  Mass.  35;  71  N.  E. 
91;  Slate  Board  of  Agriculture  v. 
Meyers  (1904),  20  Col.  App.  139; 
77  Pac.  372;  Home  Fire  Ins.  Co. 
V.  Barber  (1903),  67  Nebr.  644; 
93  N.  W.  1024. 

119  Wade  V.  Rob't  Arthur  Thea- 
tres Co.  (Eng.)  (1907),  24  T.  L.  R. 
77.  Defendants  engaged  plain- 
tiff to  act  in  the  principal  part  of 
a  pantomime  at  a  salary  of  £130 
per  week  for  the  first  year,  £140 
for  the  second  year  and  £150 
for  the  tliird  year,  with  the  option 
of  retaining  the  services  of  plain- 
tiff for  the  next  pantomime  season 
upon  the  same  terms  and  condi- 
tions as  set  forth  in  the  agree- 

120  N.  Y.  Supp.  80.  Where  plain- 
tiff, an  actor,  had  fully  performed 
under  a  written  contract  and  had 
been  asked  to  perform  for  an- 
other two  weeks  in  Chicago,  and 
the  show  was  disbanded  during 
the  second  week,  it  was  held  that 
he  could  recover — not  upon  a 
quantum  meruit, — but  upon  the 
extra  two  weeks'  engagement. 
See  also:  Kcane  v.  Liebler  (1907), 
107  N.  Y.  Supp.  102. 

'"  Rothcnbcrg  v.  Packard 
(1910),  97  Miss.  428;  52  So.  458. 
Plaintiff,  manager  of  a  produc- 

HOW    MANY   CAUSES    OF   ACTION    FOU   UHI:A(  H         M.' 

And  a  contract  made  by  the  actor  with  the  dinctnr 
general  of  a  travehng  show,  may  be  renewed  l)y  that 
same  director  general  so  as  to  bmd  the  company. '-- 

Section  47.     How  many  causes  of  action  for  breach. 

As  a  general  rule  the  actor  has  but  one  cauSc  of  action 
for  damages  for  a  breach  of  the  contract  by  WTongful  dis- 

But  it  is  necessary  to  distinguish  between  a  partial 
breach  and  a  total  breach,  ^^^lere  the  contract  is  sever- 
able and  of  such  a  nature  that  it  may  be  breached  in 
part  and  performed  in  part,  judgment  recovered  in  an 
action  for  the  partial  breach  is  not  a  bar  to  a  subsequent 
action  for  the  total  breach. ^-^ 

tion,  contracted  with  defendant 
to  give  performances  at  defend- 
ant's theatre,  defendant  agreeing 
to  pay  plaintiff  70%  of  gross 
receipts.  Just  before  the  opening 
of  first  performance  phiintiff's 
actors  and  actresses  refused  to 
proceed  with  their  acting  unless 
they  were  paid  salaries  due  them 
for  previous  performances.  An 
agreement  wa.s  made  between 
plaintiff's  traveling  agent  and 
defendant  whereby  defendant 
agreed  to  pay  artists  the  70%  to 
bo  applied  on  account  of  salaries 
due  them,  which  defendant  did. 
Plaintiff  sued  for  70%  of  the 
gross  receipts.  Held  that  it  was 
a  (juostion  for  the  jury  whether 
defendant,  in  view  of  the  emer- 

gency, could  make  a  verbal  agree- 
ment with  plaintiff's  agent  not- 
withstanding his  original  written 
contract  witli  plaintiff. 

liobcij  V.  Arnold  (Kng.)  (1898), 
14  T.  L.  R.  220.  The  meaning 
of  the  word  ''re-engagement"  is 
for  the  jury.  See  also:  Arnold  v. 
Stratton  (Eng.)  (1898),  14  T.  L.  R. 

^•'^  Eddy  V.  American  Amuse- 
ment Co.  (1913),  132  Pac.  (Cal.) 

'"  Evcrson  v.  Powers  (1882),  89 
N.  Y.  527;  Parry  v.  American 
Opera  Co.  (1887),  19  Abb.  X. 
Cas.  (N.  Y.)  269. 

"*  Livingston  v,  Klaw  el  ano. 
(1910),  1.37  A.  D.  (X.  Y.)  G3'>: 
122  N.  Y.  Supp.  204.     Plaintiff 



Where  the  employer  has  given  notice  of  his  intention 
to  breach  the  contract,  the  employe  who  then  treats  the 
contract  as  breached,  cannot  keep  it  ahve,  but  must  sue 
on  the  breach. ^-^ 

But  there  arises  no  cause  of  action,  on  a  wrongful  dis- 
charge, which  is  based  upon  the  theory  that  such  dis- 
charge was  malicious  and  oppressive.  The  law  will  not 
give  redress  for  such  injury,  but  the  action  must  be  purely 
one  for  breach  of  contract  and  nothing  more.^-^ 

Section  48. — Actor's  remedy  for  breach. 

Where  the  actor  is  ready,  able  and  willing  to  continue 
in  his  emplojnnent  and  the  producer  does  not  permit  him 

was  employed  for  a  term  of 
twenty  consecutive  weeks,  serv- 
ices to    coimnence    December  2, 

1907,  at  a  weekly  salary.  De- 
fendants failed  to  provide  em- 
plo3''ment  for  weeks  commencing 
January  6,  1908,  and  January  20, 

1908.  They  did  provide  him 
with  employment  for  weeks  cov- 
ering January  13,  1908,  and 
January  27,  1908,  respectively. 
Plaintiff  sued  for  salaries  due  for 
weeks  of  January  6  and  20,  and 
recovered  judgment.  Plaintiff 
now  sues  for  total  breach.  Judg- 
ment secured  l)ccause  of  partial 
breach  is  set  up  as  bar  to  the  ac- 
tion. Held  that  where  there  had 
been  a  partial  breach,  a  recovery 
for  sucii  breach  did  not  bar  an 

action  for  a  total  breach  subse- 
quently occurring. 

1"  Greenwall  Tlieat.  Circ.  v, 
Markowitz  (1904),  97  Tex.  479; 
79  S.  W.  1069. 

12S  Weslwater  et  ano.  v.  Rector 
et  al.  (1903),  140  Cal.  339;  73 
Pac.  1055.  Complaint  alleged 
that  the  dismissal  of  the  plaintiff, 
a  vocal  artist,  was  malicious  and 
oppressive,  and  in  consequence 
thereof  plaintiff  had  been  hu- 
miliated, suffered  great  mental 
agony,  and  had  been  sick  in  mind 
and  body.  Held  that  complaint 
was  demurrable  upon  the  ground 
that  damage  to  health,  reputa- 
tion or  feeUngs  arising  out  of  dis- 
missal was  too  remote  and  un- 



to  do  so,  or  refuses  to  pay  liiin  for  his  serviecs,  there  is  a 
breach  of  the  contract  by  the  ])roducer,  and  a  cause  of 
action  arises  in  favor  of  the  actor. 

The  latter  may  then  sue  for  the  entire  amount  due  him 
for  the  unexpired  term  of  the  contract;  and  upon  the 
trial  the  jury  may  give  him  a  verdict  up  to  such  auKJunt. 
Nor  is  the  jury  limited  by  the  amount  due  at  the  time  of 
the  trial.'-" 

After  the  occurrence  of  the  breach  it  is  not  necessary 
for  the  actor  to  tender  his  services  or  be  prepared  at  all 
times  ready  to  perform  for  the  producer.  ^-^ 

As  against  the  plaintilT's  recover}'  the  defendant  may 
set  up  the  fact  that  plaintiff  has  earned  other  money  else- 
where since  the  discharge,  and  the  jury  must  be  instructed 
to  deduct  such  earnings  from  the  damages  claimed;  '^  and 
they  may  also  speculate  on  the  amount  of  earnings  of  the 
plaintiff  which  he  may  secure  before  the  exph-ation  period 
of  the  contract.  Indeed,  the  plaintifT  is  in  duty  bound 
to  mitigate  the  damages,  and  to  use  all  reasonable  dili- 
gence in  seeking  other  cmploj'ment,''"'  although  where  his 

'"Howard  v.  Dali/  (1S75),  61  '^^  Ba.sse«  v.  French  (1895),  10 

N.  Y.  302;  Sutherland  v.   Wyer      Misc.    (X.    Y.)    672;   31    X.    Y. 

(1S77),  67  iMc.  61;  Dugan  v.  /!«- 
derson  (1872),  36  IMd.  567.  See 
also  concurring  opinion  of  Gay- 
nor,  J.,  in  Davis  v.  Dodge  (lOOS), 
126  A.  I).  (X.  Y.)  169;  110  X.  Y. 
Supp.  7S7. 

See  also:  Editorial  in  the  Xow 
York  Law  Journal  (jf  Septeinhor 
14,  1917. 

*^»  Howard  v.  Dalg  (IST.')),  61 
X.  Y.  362. 

Supp.  667.  Defendant  w:is  per- 
mitted, after  default  in  plead- 
ing, to  come  in  upon  a.sse.ssment 
of  damages  and  to  show  that 
during  the  contract  period  plain- 
tiffs received  other  earnings  which 
were  to  be  allowed  in  mitigation 
of  damages.  See  also:  Stdherland 
V.  Wgcr  (1877),  67  Me.  64. 

"oPo/^  V.  Daly  (1S73),  4  D.aly 
(X.  Y.),  411.     PlaintifT  was  dis- 


absence  does  not  prevent  the  defendant  from  reducing 
the  damage  he  may  recover  for  the  full  amount. ^^^ 

However,  if  the  defendant  wishes  to  avail  himself  of 
this  defense,  he  must  plead  it  as  a  partial  defense  in  miti- 
gation of  damages,  and  the  burden  of  estabhshing  it  is 
upon  him.^^^ 

Where  the  contract  period  has  expired  before  the  time 
of  trial,  the  actor  is  entitled  to  recover  full  compensation 
up  to  the  time  of  the  expiration  of  the  contract  period, 
less  other  earnings."^ 

Where  the  earnings  elsewhere  are  greater  than  the  com- 
pensation agreed  to  be  paid  under  the  contract  sued  on, 
the  defendant  is  entitled  by  way  of  mitigation  of  damages, 
only  to  a  proportionate  share  of  the  earnings  calculated 
upon  the  work  done  under  each  contract.  ^^^ 

charged  before  expiration  of  bis  ^^^  Dearing  v.  Pearson  (1894), 

contract.     He  tendered  his  serv-  8  Misc.  (N.  Y.)  269;  28  N.  Y. 

ices  and    upon    defendant's  re-  Supp.  715. 

fusal   to   furnish   him   with   em-  ^^^  Howard  v.  Daly  (1S75),  Gl 

ployment  left  for  the  south  where  N.  Y.  3G2. 

he  remained  during  the  balance          ^^^  Everson  v.  Powers  {18S2),  89 

of  the  contract  period.     It  was  N.  Y.  527. 

proved  by  defendant  that  plain-  ^^*  Evesson  v.  Ziegfcld  (1903), 
tiff  made  no  effort  to  find  other  22  Pa.  Super.  79.  Under  the 
employment,  but  on  the  contrary  contract  plaiutifT  was  to  receive 
"went  a  fishing."  Held  that  $100  per  week;  performances 
plaintiff  was  obligated  to  use  contemplated  to  be  seven  or 
"ordinary  but  active  diligence"  eight  per  week.  After  discharge 
in  securing  new  employment  to  ])l!unti(T  secured  other  employ- 
mitigate  damages.  See  also:  mont  at  $175  per  week,  number 
Howard  v.  Daly  (1875),  61  N.  Y.  of  performances  to  be  given  per 
362;  SiUherlaiid  v.  Wycr  (1877),  week  being  fourteen.  Held  that 
67  Me.  64.  defendant   was  only   entitled  to 



Section  49.— Profits  as  a  basis  for  damages. 

The  breach  of  a  contnict  to  })Uiy  at  a  th(;atrc  often  in- 
volves tlie  difTieulty  of  laying  a  basis  on  which  damages 
may  be  predicated.  Generally  speaking,  the  prospective 
profits  of  a  performance  are  vague  and  speculative,  and 
not  susceptible  of  such  computation  as  to  admit  of  proof. '^^ 

8/14  of  S175  per  week  in  mitiga- 
tion of  chunti^cs.  Held  further 
tliiit  plaintid  might  sliow  expendi- 
tures for  costumes,  etc.,  during 
period  of  employment  by  de- 
fendant not  as  an  item  of  dam- 
age but  for  the  purpose  of  show- 
ing performance  on  lier  part. 
Held  further  that  a  receipt  in  full 
for  money  actually  earned  did 
not  release  defendant  from  any 
and  all  claims  for  breach  of  con- 
tract as  the  money  paid  to  plain- 
tiff upon  signing  the  release  was 
actually  due  her,  hence  no  con- 
sideration for  absolute  release. 

Frohman  v.  Ma>^on  (101.5),  89 
Misc.  (N.  Y.)  380;  VA  N.  Y.  Supp. 
938.  Defendant,  counterclaim- 
ing,  sought  to  recover  for  a  breach 
of  contract  of  employment.  He 
had  been  employed  by  jjlaintitT 
at  a  salary  of  S700  a  week  and 
7%  of  the  profits  over  S7,0()() 
weekly,  but  after  the  failure  of 
the  production,  he  contracted 
with  another  manager  at  S70()  a 
week  and  a  bonus  of  SI, 700.    His 

income  for  the  sea.son  was  greater 
than  it  would  have  been  had  he 
continued  to  play  for  the  plain- 
tiff, although  in  fact  he  was  em- 
ployed for  18  weeks  instead  of 
20  weeks.  Held  that  he  was  not 
actually  damaged  and  could  not 

'"  Bernstein  v.  Meech  el  al. 
(1891),  130  N.  Y.  354;  29  X.  E. 
255.  A  contract  was  made 
whereby  plaintiff  was  to  give  a 
specified  number  of  performances 
at  defendant's  hall  and  receive 
50%  of  the  gross  receipts  from 
such  performances.  Defendant 
refusal  to  jx>rmit  plaintilT  to  per- 
form. Held  that  although  the 
value  of  the  contract  to  plaintiff 
W!is  in  the  profits,  such  profit.s 
were  not  susceptible  of  proof  and 
could  not  be  recovered. 

Culling  V.  Miner  (1898),  30 
A.  D.  (N.  Y.)  457;  52  N.  Y.  Supp. 
2SS.  Plaintiff  agreed  to  play  her 
company  at  defendant's  theatre 
and  to  receive  a  certain  percent- 
age of  the  receipts.     The  jurj' 



awarded  her  a  substantial  verdict 
but  the  Appellate  Division  re- 
versed the  judgment: 

"There  was  no  evidence  in  the 
case  to  warrant  this  finding. 
It  was  necessarily  pure  guess 
work.  ...  If  the  performance 
had  been  permitted  to  proceed, 
and  the  play  had  been  a  success 
as  evidenced  by  equally  large 
audiences  on  subsequent  occa- 
sions, there  would  have  been 
some  reasonable  basis  for  the 
finding  as  to  the  prospective 
profits  for  the  rest  of  the  week. 
But  here  there  was  no  basis  at 
all.  There  was  simply  a  first- 
night  audience  attracted  by  the 
production  of  a  new  play." 

See  also:  New  York  Academy 
of  Music  V.  Hacketl  (1858),  2 
Hilt.  (N.  Y.)  217;  Wakeman  v. 
Wheeler  (1886),  101  N.  Y.  205; 
4  X.  E.  264;  Ellsler  v.  Brooks 
(1886),  54  Super.  Ct.  (N.  Y.)  73; 
Levison  v.  Oes  (1917),  98  Misc. 
(N.  Y.),260;  Toddv.Kcene  (1896), 
167  157;  45  N.  E.  81. 

Moss  V.  Tompkins  (1893),  69 
Ilun  (X.  Y.),  288;  23  X.  Y.  Supp. 
623;  aff'd  in  144  X.  Y.  6.59;  30 
X.  E.  858.  A  contract nvas  made 
between  the  parties  whereby 
plaintifT,  the  lessee  of  a  theatre, 
agreed  to  furnish  dfifendant,  the 
manager  of  a  theatrical  produc- 
tion, theatre  and  equipment  for  a 

specified  period,  the  gross  re- 
ceipts to  be  shared  between  the 
parties.  Before  the  date  fixed 
for  the  giving  of  the  first  perform- 
ance, defendant  notified  plaintiff 
that  he  would  not  produce  the 
play  at  the  plaintiff's  theatre. 
Plaintiff  was  not  permitted  to 
show  previous  receipts  of  his 
theatre  or  the  popularity  and 
success  of  the  production  in  the 
places  where  it  had  already  been 
produced  and  that  such  receipts 
would  have  been  greater  during 
the  contract  period  than  those 
actually  taken  in  by  plaintiff. 

The  court  makes  this  signifi- 
cant statement : 

"The  defendant's  dramatic 
company  was  not  shown  to  in- 
clude artists  of  such  exceptional 
and  well-known  talent  as  to 
guarantee,  apart  from  the  play, 
audiences  of  reasonably  certain 
numbers.  Xor  was  any  special 
attraction  of  the  latter  kind  con- 
templated by  the  contract." 

But  see  in  this  connection: 
Savery  v.  Ingcrsoll  (1887),  46 
Hun  (X.  Y.),176. 

On  Ihe  construction  of  the  pay' 
ment  clause  see:  Ming  v.  Pratt 
(1899),  22  Mont.  262;  56  Pac. 
279.  Plaintiff  owned  an  opera 
house;  defendant  was  the  pro- 
prietor of  an  opera  coini)any. 
The  parties  contracted  for  a  per- 

I'ROFFTS    AS    A     HASIS    lOIi    UAMAGKS 

Tlio  plaintifT,  however,  will  h(!  pcrniitte(l  to  recover  the 
actual  losses  sustained  by  him.''""' 

formance,  and  the  court  in  pass- 
ing upon  the  meaning  of  the  pay- 
ment clause  said: 

"The  contract  expressly  pro- 
vides that  dc'fciulant  shall  have 
not  less  tlian  SboO  and  85  per  cent 
of  all  monies  received  from  the 
sale  of  scats.  The  language  is 
clear,  unambiguous  and  free  from 
any  uncertainty;  its  obvious 
meaning  is  that  defendant  was 
to  receive  S850,  and  also  85% 
of  the  gross  receipts." 

^^^  American  Hungarian  Pub. 
Co.  V.  Miles  Bros.  (1910),  68 
Misc.  (X.  Y.)  334;  123  N.  Y. 
Supp.  879.  Defendant  agreed  to 
furnish  a  motion  picture  display 
and  suitable  apparatus  for  the 
exhibition  of  motion  pictures, 
advertisements  and  election  re- 
turns. In  an  action  for  breach 
of  the  contract  for  failure  to  fur- 
nish such  paraphernalia  it  was 
held  that  plaintiff  could  recover 
as  damage  the  cost  of  preparing 
and  advertising  the  display  and 
that  of  i)reparing  a  special  edition 
of  a  newspaper  to  have  been  dis- 
tributed to  the  crowd  during  the 

PapiMs  V.  Miles  (1907),  101 
N.  Y.  Supp.  309.  Action  for 
breach    of    contract    because   of 

defendant's  failure  to  furnish 
apparatus  for  the  giving  (jf  a 
motion  picture  exhibition.  Plain- 
tifT purcha-sed  films  to  be  ox- 
liibited  on  the  stated  occasion. 
Ihld  that  plaintifT's  measure  o{ 
damage  was  the  dilTerence  be- 
tween the  amount  paid  for  the 
films  by  plaintifi"  and  their  market 

Kiralfij  v.  Macaulcy,  9  Ohio 
Dec.  (Rep.)  833;  17  Weekly  Law 
Bulletin,  331.  The  manager  was 
held  to  be  entitled  to  recover  all 
expenses  which  he  had  actually 
incurred  in  preparation  for  the 
production  of  the  play. 

Savery  v.  Ingcrsoll  (1887),  46 
Hun  (N.  Y.),  176.  Defendant 
agreed  to  deliver  lecture  at  plain- 
tiff's hall  for  which  he  was  to 
receive  a  specified  sum  of  money 
but  failed  to  appear.  Held  that 
the  following  excerpt  of  the  trial 
judge's  charge  was  proper: 

"The  plaintifT  is  entitled  to 
recover  his  actual  loss,  his  actual 
expenses,  such  expense  of  time 
and  money  as  he  had  put  himself 
to,  as  he  had  made  in  good  faith 
and  were  reasonably  made  in 
view  of  the  execution  of  the 


An  examination  of  the  above  cited  cases  establishes 
the  necessity  for  a  hquidated  damage  clause  in  a  contract 
between  the  manager  of  a  company  and  the  owner  of  a 
theatre.  Such  a  clause  is  absolutely  essential  in  the 
event  of  a  breach,  as  it  removes  all  uncertainty,  and  leaves 
only  the  question  of  the  breach  to  be  htigated. 

In  a  case  wherein  defendant  agreed  to  furnish  his  theatre 
in  Denver  for  one  week  and  plaintiff  agreed  to  provide 
his  theatrical  company  and  play  in  the  theatre  for  that 
week,  the  profits  to  be  divided,  and  each  party  to  pay,  on  a 
breach  by  it,  the  sum  of  five  hundred  dollars  as  liquidated 
damages,  it  was  held  that  this  sum  was  not  a  penalty  and 
could  be  recovered.  ^^^ 

A  frequent  application  of  this  principle  is  found  in 
contracts  made  for  the  production  of  motion  pictures. 
The  owner  of  a  play  frequently  contracts  with  a  motion 
picture  company  to  film  the  play;  he  may  also  agree  to 
play  the  star  part  in  it.  In  consideration  he  agrees  to 
take  a  percentage  of  the  profits. 

In  an  action  brought  by  the  owner  of  the  play  for 
damages  for  breach  of  the  contract,  where  the  company 
fails  to  make  a  production,  it  would  be  impossible  for 
him  to  prove  his  damage,  for  there  is  nothing  wliich  would 
serve  as  a  basis  on  which  the  probable  profits  of  the 
picture  could  be  estimated.  Hence,  the  wisdom  in  this 
instance,  of  a  lifiuidatcd  damage  clause. 

But  where  a  defendant  has  agreed  to  compensate  the 
plaintiff  in  profits,  and  the  contract  has  been  partially 
performed,  and  some  performances  have  been  given,  this 

'"  Mawson  v.  Leavitt  (1896),  16  Misc.  (N.  Y.)  289;  37  N.  Y.  Supp. 



establishes  a  basis  on  which  future  profits  may  l>e  roni- 
puted.''"*  That  alone  is  the  guide  for  hxiug  the  damages. 
Neither  the  evidence  of  experts  on  what  profits  might 
have  been  made,  or  evidence  on  what  plaintiff  earned  with 
a  third  party  at  some  time  prior  thereto,  is  admissible.''^ 
In  a  recent  decision  "°  plaintiff  had  contracted  with 
the  defendant  company  to  manufacture  a  picture  and 
turn  the  same  over  to  it.  Upon  doing  so  he  was  to  re- 
ceive a  lump  sum  equal  to  the  cost  of  producing  the  pic- 

'^ElUler  V.  Brooks  (1SS6),  54 
Super.  Ct.  (N.  Y.)  73.  Plaintiff 
was  to  receive  under  her  contract 
in  lieu  of  all  compensation  a 
portion  of  the  profits  of  tlie  under- 
taking. Held  that  the  testimony 
of  experts,  theatrical  managers, 
as  to  what  profits  would  have 
been  made  was  incompetent. 

Held  further  that  evidence  of 
what  plaintiff  made  under  similar 
forms  of  agreement  with  some 
third  party  three  or  four  years 
before  was  incompetent. 

Held  further  tliat  the  proper 
manner  to  compute  profits  was 
•  to  take  the  period  during  which 
the  agreement  was  in  operation 
and  take  the  profits  made  during 
such  period  as  the  basis  of  com- 

'^^Todd  V.  Kcene  (1896),  167 
Mas.s.  157;  45  N.  E.  81.  De- 
fendant refused  to  jwrmit  plain- 
titT  to  perform,  plaintiff  was  to 

receive  a  percentage  of  the  re- 
ceipts. It  was  lield  that  testi- 
mony of  plaintiff  giving  receipts 
of  similar  performances  given  by 
him,  also  showing  his  reputation, 
repute  and  popularity,  also  show- 
ing that  during  the  previous  year 
he  had  played  in  the  same  theatre 
to  a  large  audience  and  that  the 
town  was  the  seat  of  an  institu- 
tion of  learning  and  that  his  per- 
formance would  appeal  to  a  large 
number  of  students,  was  inad- 
niissil)!e  on  the  question  of 
damages  and  that  plaintiff  was 
entitled  to  nominal  damages 

^*°  Goldberg  v.  Popxdar  Pictures 
Corporation  (1917),  X.  Y.  Law 
Journal,  Jan.  20,  Greenbaum,  J. 
The  api^eal  taken  in  the  action 
and  reported  in  (1917),  178  A.  D. 
(X.  Y.)  S6,  was  not  from  the 
order  matle  in  pursuance  of  the 
motion  above  reported. 


ture  and  subsequently  a  share  of  the  gross  receipts  reaHzed 
from  the  exhibition  of  the  picture.  Defendant  refused 
to  take  and  pay  for  the  picture,  and  plaintiff  brought 
action.  Judge  Greenbaum  held  that  the  complaint 
should  have  set  up  a  case  for  damages  for  the  breach  of  a 
contract.    Said  he: 

"Upon  the  defendant's  failure  or  refusal  to  accept  the 
negative  and  films  the  plaintiffs  had  the  right  to  retain 
them  and  to  hold  the  defendant  liable  for  damages  for 
the  breach  of  contract  if  its  refusal  to  accept  was  un- 
justifiable. These  damages  would  be  measured  by  the 
actual  cost  to  the  plaintiffs  of  producing  the  negatives 
and  films,  and  of  the  proportionate  amount  of  the  gross 
receipts  derived  by  the  defendant  from  the  picture,  as 
pro\'ided  in  the  contract.  It  is  obvious,  however,  that  it 
would  he  impossible  in  this  case  to  establish  what  the  gross 
receipts  would  be  where  the  defendants  have  failed  to  accept 
the  films." 

Section  50. — ^Producer's  offer  of  re-employment  after 

Since  it  is  the  duty  of  the  actor,  where  he  has  been 
discharged,  to  mitigate  the  damages  by  seeking  other 
employment,  it  is  his  duty  to  accept  employment  offered 
by  the  producer  who  has  discharged  him,  providing  the 
offer  is  made  in  gofjd  faith,  is  for  the  balance  of  the  con- 
tract period,  for  the  same  kind  of  services  as  under  the 
contract,  and  providing  the  actor  is  still  out  of  employ- 

Where  the  actor  was  discharged,  the  producer  in  his 
offer  to  re-employ,  is  reciuired  to  tender  all  moneys  due 

riiODrcEu's  orrnni  of  re-employment  after  dreach    loo 

and  accruing  unclor  the  contract  between  the  time  of  the 
discharge  and  the  time  of  the  ofTer.  That  is  tlie  test  of 
good  faith. 

Wliere  the  actor  was  compelled  to  leave  because  of  the 
brutaUty,  abuse  or  other  improper  treatment  of  the  pro- 
ducer or  those  iii  his  employ,  he  may  ignore  such  offer  of 
re-employment,  as  he  is  not  required  to  subject  himself 
again  to  such  treatment. 

The  services  to  be  rendered  under  the  re-employment 
and  the  duration  of  the  same  must  be  substantially  the 
same  as  under  the  original  contract.''^ 

\Miere  the  actor  has  obtained  emploj-ment  elsewhere, 
he  is  not  bound  to  abandon  it  in  order  to  accept  such 
oJBfer  of  re-employment.'^^ 

>«•  DcLoraz  v.  McDowell  (1893), 
68  Hun,  170;  22  N.  Y.  Supp.  606; 
aff'd  142  N.  Y.  664;  37  N.  E.  570. 
Plaintiff  was  employed  for  a  def- 
inite period.  Before  entering 
upon  the  performance  of  her 
duties  she  was  discharged.  Later 
defendant  made  an  offer  to  en- 
gage her  for  an  indefinite  period 
which  plaintiff  refused.  Held 
that  although  defendant  might 
luive  .set  up  the  offer  to  engage 
as  a  partial  defense  in  mitigation 
of  damages  yet  he  might  not  set 
up  such  'jffer  and  refusal  as  a 
complete  defense  to  the  action. 
Defendant  cannot  substitute  a 
contract  of  iiulelinit(>  hiring  for 
one  of  a  definite  period. 

'*'■*  Z)eari«^  v.  Pearson  (1894), 

8  Misc.  (N.  Y.)  269;  28  N.  Y. 
Supp.  715.  "After  the  termina- 
tion of  the  contract  by  defend- 
ant's breach  it  could  not  be  rein- 
stated and  plaintiff  deprived  of 
her  cause  of  action  except  by 
mutual  consent.  Defendant  had 
a  locus  poenitentia?,  but  only  to 
the  extent  of  enabling  him  to 
reduce  plaintiff's  damages  by 
providing  her  with  employment 
of  the  same  kind,  which  plaintiff 
would  have  been  bound  to  accept 
unless  in  the  meantime  she  had 
entered  upon  another's  employ- 
ment or  her  refusal  wa.s  justifiable 
upon  substantial  grounds,  uniler 
I)ain  of  suffering  a  diminution  of 
lier  recovery  to  the  extent  of  the 
earnings    she    would    have    re- 



An  offer  of  re-employment  may  be  pleaded  by  defend- 
ant, but  it  is  not  a  total  defense  to  the  plaintiff's  cause  of 
action.  It  may  simply  be  set  up  in  reduction  of  and  in 
mitigation  of  damages.  ^'^'^ 

Section  51. — Grounds  for  discharge. 

An  actor,  hke  any  other  employe,  may  be  discharged 
for  a  violation  of  any  express  or  implied  covenant  of  his 
contract  of  emplo;yTnent. 

A  prolific  source  of  discord  between  actor  and  producer 
is  the  failure  of  the  actor  to  appear  at  rehearsals;  and 
where  this  failure  to  attend  is  willful  or  intentional,  the 
actor  may  properly  be  discharged.  ^^* 

ceived  from  the  employment 
offered  her." 

1"  DeLoraz  v.  McDowell  (1893) , 
68  Hun  (N.  Y.),  170;  22  N.  Y. 
Supp.  606;  aff'd  142  N.  Y.  664; 
37  N.  E.  570;  Dearing  v.  Pearson 
(1894),  8  Misc.  (X.  Y.)  269;  28 
N.  Y.  Supp.  715. 

'**  Fisher  v.  Monroe  (1891),  12 
N.  Y.  Supp.  273.  Where  plaintiff 
had  been  engaged  as  an  actress 
for  a  season  of  30  weeks,  and  she 
failed  to  appear  at  a  rehearsal. 
Held  that  her  failure  to  appear 
wa.s  not  explained  and  that  it 
wa.s,  under  the  circumstances, 
ground  for  discharge,  and  a  ver- 
dict in  her  favor  should  be  .^et 
aside.  Reversing  Fisher  v.  Mon- 
roe (1800),  11  N.  Y.  Supp.  207, 
where,   however,  the  court   also 

said:  "And  if  the  failure  to  at- 
tend (rehearsal)  was  willful  or 
intentional,  the  plaintiff  was  prop- 
erly discharged,  and  cannot  re- 

Spalding  v.  Rosa  (1877),  71 
N.  Y.  40;  Slrackosh  v.  Slrackosh 
(1890),  11  N.  Y.  Supp.  251. 
Compare  Robinson  v.  Davison 
(Eng.)  (1871),  L.  R.  6  Exch.  269, 
where  illness  was  held  to  be  an 
excuse.  Sec  also :  Wolfe  v.  Howes 
(1859),  20  N.  Y.  197;  Fuller  v. 
Broion  (1846),  11  Mete.  (Mass.) 
410;  Jerome  v.  Queens  City  Cycle 
(1900),  163  N.  Y.  351;  57  N.  E. 
485;  Fenton  v.  Clark  (1839),  11 
Vt.  557;  Rolfs  v.  Pooley  Furn.  Co. 
(1912),  176  III.  Ai)p.  93;  Beck'man 
V.  Garrett  (1902),  66  Ohio  St.  136; 
64  N.  E.  62;  Development  Co.  v. 



But  illness  of  the  actor  may  excuse  him,  if  the  illness 
is  not  protracted  and  does  not  seriously  ailect  the  rei)ro- 
duction  of  the  picture."^ 

Where  the  illness  is,  however,  serious  enough  to  pre\'ent 
the  actor  from  rehearsing  or  performing,  the  right  of  dis- 
charge arises,  as  a  contract  of  employment  is  purely 
personal  in  its  nature,  and  illness  or  other  incapacity  to 
perform  terminates  all  rights  under  it."^ 
King  (190S),  101  Fed.  (C.  C.  A.)      The  owner  of  a  theatre  may  make 


'^^  Robinson  v.  Davison  (EnR.) 
(1871),  L.  R.  6  E.xch.  209. 
Where  the  contract  of  a  performer 
requires  the  appearance  of  the 
artist  on  a  particular  clay,  failure 
to  appear  because  of  illness  docs 
not  necessarily  constitute  a  breach 
of  the  contract. 

See  also:  Spaulding  v.  Rosa 
(1877),  71  X.  Y.  40;  Brayidt  v. 
Goodioin  (1889),  3  N.  Y.  Supp. 
807;  Dickey  v.  LinscoU  (1841),  20 
Me.  453;  DeZeichner  v.  Lamm 
(1914),  187  111.  App.  25;  Wells  v. 
HaJJ  (1915),  105  A.  1).  (X.  Y.) 
705;  151  N.  Y.  Supp.  497;  Young 
V.  Am.  Opera  Co.  (1887),  X.  Y. 
Daily  Reg.,  May  27;  Williams  v. 
Buller  (1914),  105  X.  K.  (Ind.) 
387;  Thomas  v.  Beaver  Dam  Mfg. 
Co.  (1914),  157  Wis.  427;  147 
N.  W.  304;  Bellini  v.  Gye  (Eng.) 
(1870),  1  Q.  B.  183. 

See  also:  Const  v.  Marelzek 
(1855),  4  E.  D.  Smith  (X.  Y  ),  1. 

rea.sonable  rules  and  regulations 
by  which  the  artists  are  to  be 
governed.  The  contract  in  the 
instant  case  provided  that  ab- 
sence of  the  artist  would  cause  a 
forfeiture  of  the  contract  unless 
such  absence  was  caused  by  ill- 
ness and  provided  furtlier  that 
such  illness  had  to  be  proved  by 
the  doctor  appointed  by  the 
director.  The  fact  that  the  artist 
wais  a  homeopathist  did  not  ex- 
cuse the  artist  from  complying 
with  the  rule  of  the  owner. 

Graddon  v.  Price  (Eng.)  (1827), 
2  C.  &  P.  010;  12  E.  C.  L.  280. 
The  actress  was  given  one  day's 
notice  to  appear  in  the  part  in 
which  she  had  previously  played. 
Held  that  it  wa.^^  a  question  for 
the  jury  whether  the  absence  of 
actress  because  of  illness  justified 
the  imposition  of  a  fine. 

'"  Poussard  v.  Spiers  (Eng.) 
(1870),  1  Q.  B.  I).  410.  Whore 
the  contract  provides  for  employ- 



Illness  of  the  star  actor,  preventing  the  continuance  of 
the  making  of  the  film  does  not  release  the  producer  from 
his  obligations  toward  the  other  members  of  the  com- 
pany. ^^^ 

Incompetency  is  just  ground  for  discharge. ^^^     But 

ment  for  an  extended  appearance 
and  the  absence  of  the  artist  may 
result  in  serious  injury,  failure  to 
appear  although  caused  by  illness 
gives  the  manager  a  right  to 
rescind  the  contract.  See  also: 
Harley  v.  Henderson  (Eng.) 
(1884),  Times,  Feb.  18,  19. 

Macalay  v.  Press  Pub.  Co. 
(1915),  170  A.  D.  (N.  Y.)  640; 
155  N.  Y.  Supp.  1044.  Plaintiff, 
a  professional  cartoonist,  was  dis- 
charged before  the  expiration  of 
the  term  of  his  contract  because 
of  continued  tardiness  in  coming 
to  work.  It  was  held  that  de- 
fendant was  entitled  to  fix  a  rea- 
sonable time  at  which  plaintiff 
should  report  for  duty,  and  if  the 
employe  did  not  report  at  such 
time  either  through  illness  or 
any  other  cause,  the  defendant 
could  at  his  option  terminate  the 

"'  Wcnlworlh  v.  Whitney 
(1903),  25  Pa.  Super.  100.  Con- 
tract provided  for  weekly  pa.y- 
mcnt  with  deductions  only  "for 
any  nights  or  days  on  which  tlie 
party  of  the  second  part  (plain- 

tiff) may  not  be  able  to  perform 
or  sing,  through  illness  or  other 
unavoidable  cause,  or  at  such 
times  that  the  company  may  not 
be  giving  performances."  Held 
that  failure  to  give  performance 
because  of  absence  of  necessary 
artist  where  plaintiff  was  ready 
to  go  on,  was  no  excuse  for  re- 
fusal to  pay  plaintiff  her  com- 
pensation for  the  performance 
even  though  defendant  was  not 
at  fault. 

GaiUin  v.  Searle  (1881),  1  N.  Y. 
City  Court,  349.  Defendant  dis- 
charged plaintiff  because  of  ill- 
ness of  star  of  production  and 
her  inability  to  perform.  Held 
that  such  illness  did  not  relieve 
defendant  from  his  obligation  to 

i"**  McLaughlin  v.  Hammerslcin 
(1904),  99  A.  D.  (N.  Y.)  225;  90 
N.  Y.  Supp.  943.  It  was  error 
for  the  trial  judge  to  refuse  to 
charge   (at  defendant's  request): 

"If  tlu!  plaintiff  gave  an  in- 
coiiipctciil  jierformancc  the  de- 
fendant was  at  liberty  to  ter- 
minate   the    agreement    without 



what  is  "inconipetcncy"  is  often  a  debatublo  (luestion. 
In  one  case  "incompetency"  was  held  not  to  be  equiv- 
alent to  "unsatisfactory"  and  really  to  mean  the  actual 
physical  disability  of  the  artist  to  appear,"'^  and  not  the 
professional  ciuality  of  the  voice.'""  The  rule  as  to  com- 
petency is  well  stated  in  Brandt  v.  Godwin,^^^  holding  in 
effect  that  tlic  actor  impliedly  warrants  that  he  has  the 
requisite  ability  and  skill  to  perform. 

any  notice  whatever,  and  was 
not  compelled  to  permit  him  to 
perform  for  the  entire  period  of 
the  contract." 

'*' Brand  v.  Godwin  (1890),  8 
N.  Y.  Supp.  339;  (1890),  9  N.  Y. 
Siipj).  743.  An  opera  singer  wa.s 
eiij^uKcd,  a  portion  of  the  contract 
reading:  "In  the  event  either  of 
incompetency  or  of  such  con- 
tinued illness  or  decrease  of 
physical  or  vocal  faculties  as  to 
prevent  one  from  doing  service 
for  a  period  of  more  than  two 
weeks,  the  company  may  in  its 
discretion  cancel  or  annul  the 
contract  with  the  party  in  ques- 
tion, without  i)eiiig  subjected  to 
any  claim  for  damages.  The 
vocal  and  musical  directors  shall 
be  the  .sole  judges  of  the  fact  and 
extent  of  the  incompetency,  in 
applying  this  rule." 

The  court  held  that  "incom- 
I>etency"  was  not  ecjuivalent  to 
"unsatisfactory,"  and  that  some 

proof  of  actual  incompetency 
should  have  been  offered. 

"0  Young  v.  American  Opera 
Co.  (1887),  Daily  Reg.  (X.  Y.), 
May  27.  The  contract  there 
provided  that  in  the  event  of 
incompetency  for  two  weeks,  the 
plaintiff  could  be  discharged. 
The  word  incompetency  was  held 
to  mean  phj'sical  disability  due 
to  illness  and  not  professional 
quality  of  the  voice. 

''-'Brandt  v.  Godwin  (1889),  3 
N.  Y.  Supp.  807.  "  It  is  the  rule 
that  where  a  person  engages  to 
perform  a  service  requiring  the 
possession  of  special  skill  and 
(jualities,  there  is  an  implied 
warranty  on  his  part  that  he  is 
possessed  of  the  retjuisites  to 
perform  the  duties  undertaken, 
and  if  found  wanting,  the  right 
to  discharge  exists."  To  the 
same  effect:  Spaulding  v.  Rosa 
(1877),  71  X.  Y.  40. 



Discharge  for  incompetency  must  be  made  in  good 
faith  ^^-  and  can  only  be  made  after  the  actor  has  been 
given  a  reasonable  opportunity  to  perform  or  rehearse 
his  role  ^^^  and  on  sufficient  evidence  of  his  incompe- 
tency. ^^^  But  where  the  artist  has  commenced  rehearsal 
and  the  producer  feels  that  he  is  incompetent,  he  is  imder 
no  obligation  to  permit  him  to  continue,  but  may  dis- 
charge him  at  once.^^^ 

^^^Grinnell  v.  Kiraljy  (1890), 
55  Hun  (N.  Y.),  422;  8  N.  Y. 
Supp.  623.  A  contract  in  which 
plaintiff  was  engaged  as  a  sou- 
brette  and  in  which  the  manager 
reserved  the  right  to  discharge 
her  for  incompetency  or  other 
reasons  if  he  became  dissatisfied 
with  her,  held  to  be  qualified  by 
the  use  of  the  words  "in  good 
faith"  and  that  plaintiff  had 
bound  himself  by  those  words  not 
to  act  arbitrarily  or  capriciously. 

>"  Walton  V.  Godwin  (1890),  58 
Hun  (N.  Y.),  87;  11  N.  Y.  Supp. 
391.  The  contract  provided  that 
"the  vocal  and  musical  directors 
shall  be  the  sole  judges  of  the 
fact  and  extent  of  the  incom- 
petency" of  the  plaintiff.  Held 
that  discharge  was  not  justified 
where  after  signing  of  the  con- 
tract plaintiff  was  never  called 
upon  to  rehearse  or  perform. 

"'//ar/e?/  v.  Uemlcrson  (lOiig.) 
(1884),  Times,  Feb.  19.  Plainlilf 
was    engaged    to    play    at    the 

Comedy  Theatre  in  London. 
Four  months  afterward  the  de- 
fendant informed  him  that  the 
author,  the  chorus  mistress  and 
the  conductor  complained  that 
he  was  "frightfully  out  of  tune" 
and  plaintiff  was  accordingly 

Held  that  the  evidence  was 
not  sufficient  to  show  that  plain- 
tiff was  incompetent  to  perform 
his  role,  and  judgment  was  ren- 
dered in  his  favor. 

Charleij  v.  Potthoff  (1903),  118 
Wis.  258;  95  N.  W.  124.  It  was 
for  the  jury  to  say  whether  plain- 
tiff gave  the  kind  of  performances 
contemplated  by  the  contract. 

^''"T/ull  V.  Iloyt  (1899),  37 
A.  D.  (N.  Y.)  521;  56  N.  Y. 
Supp.  78.  An  actress  was  en- 
gaged to  play  a  part,  defendant 
agreeing  to  give  her  "a  trial." 
She  brouglit  this  action  for 
breach  of  a  contract  of  employ- 
ment for  a  season  and  the  court 
nonsuited   her.     See   also:    Mc- 



The  death  of  one  <jr  more  nieiiibers  (jf  a  troupe  will 
cancel  a  contract  for  their  appearance,  where  the  member 
who  has  died  is  one  of  the  chief  performers  in  the  troupe.'^ 

Laughlin  V.  Ilnmmerstein  (1904), 
99  A.  D.  (N.  Y.)  225;  90  N.  Y. 
Supp.  943. 

Zamco  V.  Hammerstein  (Enp.) 
(10i:{),2!)T.  L.  \{.  217.  Defend- 
ant engaged  plaint ilT  as  an  opera 
singer.  After  rehearsal  defendant 
became  dissatisfied  with  him  and 
refused  to  let  him  appear.  Held 
that  it  was  open  to  proof  whether 
or  not  defendant  was  justified 
in  terminating  the  contract. 

^i»  Spalding  v.  Rosa  (1877),  71 
N.  Y.  40.  Allen,  J.:  "Contracts 
of  this  character,  for  personal 
services,  whether  of  the  con- 
tracting party  or  of  a  third  per- 
son, requiring  skill,  and  which 
can  only  be  performed  by  the 
particular  individual  named,  are 
not,  in  their  nature,  of  absolute 
obligation,  under  all  circum- 
stances. Both  parties  must  be 
supposed  to  contemplate  the 
continuance  of  the  ability  of  the 
j)erson  whose  skilled  services  are 
the  subject  of  the  contract,  as 
one  of  the  conditions  of  the  con- 
tract. Contracts  for  personal 
services  are  subject  to  this  im- 
plied condition,  that  the  person 
shall    b«'   able   at   the   apixjinti-d 

time  to  perform  them;  and  if  he 
dies,  or  without  fault  on  the 
part  of  the  covenantor  becomes 
disabled,  the  obligation  to  per- 
form becomes  extinguished." 

This  further  holds  that 
where  a  theatrical  troupe  is  en- 
gaged, it  is  of  the  essence  of  the 
contract  that  the  chief  artist 
shall  perform. 

Glitiseretti  v.  Richards  (Eng.) 
(1907),  Times,  Jan.  26th,  pre- 
sents the  interesting  question 
whether  a  troupe  of  acrobats  can 
insist  on  performance  of  a  con- 
tract when  some  of  the  acrobats 
have  died  or  left  the  troupe  since 
the  making  of  the  contract. 
However,  this  point  was  not  di- 
rectly passed  upon.  See  also: 
Ilarvcy  v.  Tivoli,  Manchester, 
Ltd.  (Eng.)  (1907),  23  T.  L.  R. 
592;  Robi}isoti  v.  Davison  (Eng.) 
(1871),L.  R.  6E.\ch.  269. 

See  in  this  connection:  Phil- 
lips V.  Alhambra  Palace  (Eng.) 
(1901),  1  K.  B.  59.  The  death 
of  one  proprietor  was  held  not 
to  al)rogate  the  contract  with  the 
performer,  and  the  contract  was 
hold,  as  to  such  proprietors,  not 



The  immorality  or  lewd  conduct  of  the  artist  is  suffi- 
cient ground  for  discharge, ^^^  as  well  as  violent  and  abusive 
language  ^^^  and  insolence  ^^^  and  insubordination;  ^^°  so 
that  where  the  conduct  of  a  manager  threatens  the  best 
interests  of  the  theatre,  he  may  be  discharged. ^^^  Indeed, 
unfaithfulness  generally  is  sufficient  gi'ound.^^-  And 
where  the  actor  claims  an  interest  in  the  business  when 
he  has  none  in  fact  he  may  be  dismissed.  ^^' 

^^''  Drayton  v.   Reid   (1874),  5      ploye  was  engaged  in  a  fight  in 

Daly  (X.  Y.),  442.  Where  the 
plaintiff  was  guilty  of  lewd  and 
indecent  conduct,  cursed  and 
swore  and  had  illicit  intercourse 
with  one  of  the  performers,  a 
married  man,  her  discharge  was 

^^nVade  V.  Hefner  (1915),  84 
S.  E.  (Ga.  App.)  598;  Ernst  v. 
Grand  Rapids  Engr.  Co.  (1912), 
138  N.  W.  (Mich.)  1050;  Bass 
Furnace  Co.  v.  Glasscock  (1886), 
82  Ala.  452;  2  So.  315. 

»^»  Forsythc  v.  McKinney  (1890), 
8  N.  Y.  Supp.  5G1. 

i<5o  Zenatcllo  v.  Hammerstein 
(1911),  231  Pa.  56;  79  Atl.  922. 
The  defendant  averred  that  plain- 
tiff, an  opera  singer,  was  asked  to 
sing  the  tenor  role  in  "The 
Prophet"  and  tliat  he  declined 
to  do  so  without  reason. 

Held  that  this  was  clearly  a 
question  for  the  jur>'.  See  also: 
Ilaag  v.  Rogers  (191 1 ) ,  9  Cla.  Apf). 
G.'>0;  72  S.  E.  46,  where  the  em- 

the  emploj^er's  place  of  business. 

See  also:  Standing  v.  Brady 
(1913),  157  A.  D.  (N.  Y.)  657;  142 
N.  Y.  Supp.  656;  Rajalo  v.  EdeU 
stein  (1913),  140  N.  Y.  Supp. 
1076;  SO  Misc.  (N.  Y.)  153;  Duff 
V.  Russell  (1892),  133  N.  Y.  678; 
31  N.  E.  622;  aff'g  14  N.  Y.  Supp. 
134;  Standidge  v.  Lynde  (1905), 
120  111.  App.  418;  Morrison  v. 
Hurtig  (1910),  198  N.  Y.  352;  91 
N.  E.  842. 

"1  Lacy  V.  Obaldiston  (Eng.) 
(1837),  8  C.  &  P.  80;  34  E.  C.  L. 

^^^Alexender  v.  Potts  (1909), 
151  111.  App.  587;  Carpenter  Steel 
Co.  V.  Norcross  (1913),  204  Fed. 
(C.  C.  A.)  537. 

'8'  Fitzgerald  v.  George  Nenmes, 
Ltd.  (I'^ng.)  (1902),  Times, 
April  22.  An  editor  who  claimed 
an  interest  in  a  periodical  because 
the  magazine  liad  been  founded 
at  his  suggestion,  was  dismissed 
without  notice.    Held  justified. 



The  jjroducer  may  discharge  the  actor  fur  drunkenness; 
one  act  of  drunkenness  is  sufficient;  '^^  and  where  he  is 
sued  for  a  breach  the  producer  may  set  up  drunkenness 
as  a  riglitful  discliargcJ'"''' 

But  where,  after  intoxication,  the  actor  is  retained  in 
his  cmplo^inent,  this  would  probably  be  a  condonation, 
and  he  could  not  subsequently  be  discharged  therefor,'" 
unless  he  persisted  in  his  derelictions.'" 

•" /?a.s.s  Furnace  Co.  v.  Cfa.s.s-      See  Willis  v.  Loucry  (1912),  57 

cock  (1SS6), 82  Ala.  452;  2  So.  315. 
Where  an  employe  while  in  the 
service  of  his  employer  becomes 
drunk  and  manifests  .sucli  drunk- 
enness b}'  boisterous  and  dis- 
orderly conduct,  the  employer 
may  discharge  him  as  it  "is  such 
misconduct  as  to  constitute  a 
violation  of  the  stipulation,  im- 
plied in  every  contract  of  service, 
that  the  employe  will  conduct 
himself  with  such  decency  and 
politeness  of  deportment  as  not 
to  work  an  injury  to  the  business 
of  the  employer."  "Tliis  he  can 
do  by  a  single  act  of  drunken- 
ness." To  the  same  effect: 
GonsoliJi  v.  Gcarhart  (1SG2),  31 
Mo.  585. 

""  Broivn  v.  Bdldtrin-Glenson 
(1891),  13  X.  V.  Supi).  S03.  "Ac- 
cordingly it  was  opep  to  the  de- 
fendant on  the  pleadings  (under 
a  general  denial)  to  show  that 
the  plaintiff's  dismissal  was  riglit- 
Jul,     because     of     into.xication." 

So.  (Miss.)  418.  And  in  par- 
ticular Linton  v.  V.  F.  Co.  (1891), 
124  X.  Y.  533;  27  N.  E.  406, 
which  holds  that  a  defendant 
may  not  offer  pmoi  of  justifica- 
tion for  discharge  under  a  general 
denial,  but  that  the  same  must 
be  pleaded  as  a  defense,  since  a 
complaint  wliicli  alleges  a  con- 
tract and  a  discharge  prior  to 
its  expiration  makes  out  a  prima 
facie  case.  "The  law  will  hot 
presume  that  a  servant  ha.s  been 
derelict  in  his  duty."  The  bur- 
den of  proving  this  is  upon  the 

'•«  BalchcUler  v.  Standard 
Plunger  El.  Co.  (1910),  227  Pa. 
201;75Atl.  1090. 

'"  Macauloij  v.  Press  Pub.  Co. 
(1915),  170  A.  D.  (X.  Y.)  640; 
155  X.  Y.  Supp.  1044;  Ginsberg 
V.  Friedman  (1911),  146  A.  D. 
(X.  Y.)  779;  131  X.  Y.  Supp  517; 
Posbach  v.  Sackelt  A-  Wilhehnn 
Co.   (1909),   134  A.   D.   (X.  Y.) 



It  has  been  held  that  a  musician  may  be  discharged 
by  his  manager  where  the  musical  union  to  which  they 
both  belong  will  not  permit  the  former  to  play.^^^  And 
an  actor  who  is  violating  the  law  by  not  obtaining  a  re- 
quired Hcense,  may  also  be  discharged.  ^^^ 

While  actual  notice  is  indispensable/""  no  precise  words 
of  discharge  are  required;  any  speech  by  which  he 
is  informed  that  his  services  are  no  longer  desired 
suffices.  ^'^^ 

The  death  of  the  actor  at  once  terminates  the  contract.  ^^^ 

130;  118  N.  Y.  Supp.  846;  United 
Oil  Co.  V.  Grey  (1907),  102  S.  W. 
(Tex.)  934. 

^^^Scarano  v.  Lemlein  (1910), 
66  Misc.  (N.  Y.)  174;  121  N.  Y. 
Supp.  351.  "Where  both  plain- 
tiff and  defendant  were  members 
of  a  musical  union  and  entered 
into  a  contract  of  employment, 
there  is  a  presumption  that  the 
contract  is  to  be  read  in  the  light 
of  the  union's  by-laws,  in  so  far 
as  such  by-laws  attempt  to  regu- 
late the  terms  of  employment 
of  its  members,  and  defendant 
could  properly  discharge  the 
plaintiff  when,  under  the  by- 
laws of  the  union,  the  plaintiff 
was  preclutlcd  from  performing 
the  work." 

^''^Gray   v.    The   Oxford,   Lim. 
(Eng.)  (1906),  22  T.  L.  R.  684.. 
Defendant  owned  a  music  hall; 
plaint ilT  producc^d  a  sketcli  "Tlic 

Fighting  Parson"  in  it  under  a 
contract  for  six  weeks.  After 
five  weeks  defendant  decided  that 
this  was  a  stage-play  and  could 
not  be  performed  unless  he  had  a 
theatre  license.  He  cancelled 
the  contract. 

Held  that  this  sketch  was  a 
stage-play  and  could  not  legally 
be  produced  in  a  music  hall  and 
that  defendant  was  entitled  to 
cancel  his  contract. 

'■">DeGdlert  v.  Poole  (1888),  2 
N.  Y.  Supp.  651. 

"'Sigmon  v.  GoldMone  (1906), 
116  A.  D.  (X.  Y.)  490;  101  N.  Y. 
Supp.  984. 

As  to  the  burden  of  proof  see: 
Maraita  v.  Ilecr  Dry  Goods  Co. 
(1915),  190  Mo.  App.  420;  177 
S.  W.  718. 

>"  For  detailed  discussion  of 
this  proposition,  see  Sections  10 
and  14. 



But  whoro  tho  actor  was  to  receive  part  of  his  compen- 
sation during  the  term  of  the  contract,  and  the  Ijalance 
at  the  end,  his  heirs  may  sue  on  a  quantum  meruit  for 
the  period  during  which  he  performed.'"^ 

^Miere  the  ])arti(>s  agi'ee  Ijeforehand  as  to  the  manner 
and  temis  of  discharge,  it  would  seem  that  they  would 
be  bound  thereby, '^^  and  that  the  damages  recoverable 
would  be  such  as  were  fixed  by  the  contract.'"^ 

>"TFo//c  V.  Howes  (1859),  20 
N.  Y.  197.  Where  contract  of 
employment  provided  that  plain- 
tiff's testate  was  to  receive  par- 
tial compensation  duriiiR  period 
of  employment  and  balance  upon 
termination  of  contract  period 
it  was  held  that  plaintiff  was 
entitled  to  recover  for  his  tes- 
tate's services  upon  a  quantum 
meruit  basis,  where  plaintiff's 
testate  was  incapable  of  carrying 
out  the  agreement  because  of 

"*  Griffin  V.  lirooLlyn  Hall  Club 
(1902),  68  A.  D.  (X.  Y.)  5GG;  73 
N.  Y.  Supp.  864.  "The  contract 
between  the  parties  contained  a 
clause  providing  that  the  de- 
fendant might  'at  any  time  after 
the  begiiming  and  prior  to  the 
completion  of  the  period  of  this 
contract  give  the  |)arty  of  the 
second  part  (plaintiff)  ten  days' 
written  notice  of  its  option  and 
intention  to  end  and  determine 

all  its  liabilities  and  obligations 
under  this  contract,  in  which 
event,  upon  the  expiration  of 
said  ten  days,  all  liabilities  and 
obligations  undertaken  by  said 
party  of  the  first  part  or  its  as- 
signs' should  at  once  'cease  and 

"It  is  urged  that  because  de- 
fendant under  this  clause  might 
have  discharged  plaintiff  upon 
ten  days'  notice,  it  cannot  be 
held  liable  upon  its  breach  for 
damages  for  more  than  that 
period.  {Watso7i  v.  Russell,  149 
N.  Y.  3S8.) 

"We  are  unwilling  to  adopt 
this  view.  We  are  not  interested 
in  what  defendant  might  have 
done  under  this  contract,  but 
in  what  it  did  do." 

Watson  V.  Russe'l  (1896),  49 
X.  Y.  3,S8;  44  N.  E.  161. 

'»  Egbert  v.  Sun  Co.  (1903),  126 
Fed.  (C.  C.)  568. 



Section  62. — Actor's  breach  of  the  contract— damages. 

While  a  producer  who  engages  an  actor  and  "features" 
hun  in  an  important  role,  may  suffer  considerable  pecun- 
iary loss  because  of  the  latter's  breach  of  the  contract,  it 
is  not  an  easy  matter  to  collect  damages  therefor.  Of 
course,  the  producer  has  a  cause  of  action  agamst  the 
actor,  ^"^  but  that  helps  him  very  little,  smce  it  is  next  to 
impossible  to  find  a  true  basis  for  damage. 

The  way  in  which  this  is  usually  overcome  is  to  insert 
in  the  contract  a  clause  for  Hquidated  damages  to  be  paid 
by  the  actor  m  the  event  of  his  breach.  Where  such 
damages  are  reasonable  in  amount,  the  court  will  uphold 
them.'"^    The  safest  clause  to  insert  is  one  providing  that 

"6  Placide  v.  Burton  (1859) ,  17 
Super.  Ct.  (N.  Y.)  512.  A  man- 
ager may  maintain  an  action 
against  an  actor  who  failed  to 
appear  upon  the  date  agreed 
upon,  for  the  damages  sustained 
by  him  by  reason  of  the  breach. 

Bellini  V.  Gye  (Eng.)  (1876),  1 
Q.  B.  D.  183.  Plaintiff  was  en- 
gaged especially  as  a  tenor  to 
apj)ear  in  London.  He  failed  to 
arrive  in  time  to  attend  rehearsals, 
because  of  illness,  and  when  he 
offered  to  perform  dofciulant 
refused  to  permit  him,  claiming 
a  breach. 

IIcM  that  defendant  could  not 
rescind,  but  that  he  could  have 
sued  j)Iaintiff  at  law  for  tlio  diitii- 
agcs  sustained;  that  his  covenant 

to  appear  on  a  specified  opening 
date  did  not  go  to  the  root  of  the 
matter — in  other  words,  it  was 
not  of  the  essence  of  the  contract. 

1"  Bustanobyv.  Revardcl  (1911), 
71  Misc.  (N.  Y.)  207;  130  N.  Y. 
Supp.  894.  Plaintiff  was  the 
owner  of  a  restaurant.  It  agreed 
with  defendants  to  employ  them 
at  SI  15  a  week  as  musicians  for 
two  years,  and  the  contract  pro- 
vided that  in  case  defendants 
breached  the  same  they  should 
be  liable  for  SI, 000  as  liquidated 

Held  that  in  view  of  the  fact 
that  in  case  of  a  breach  the  dam- 
ages to  plaintiff  would  necessarily 
be  uncertain,  this  was  a  reason- 
able provision. 

actor's   BIIEACH    Oh    THE    CONTRACT 


tho  actor  will  pay  as  liquidated  damages  an  amount 
equal  to  what  he  would  have  received,  had  he  performed.''* 
It  matters  very  little  whether  the  words  "penalty"  or 
"li(iuidated  damages"  are  used.  The  courts  will  not  be 
bound  1)}'  the  language  of  the  contract.'"* 

Tlic  contract,  however,  wa.s 
void  for  want  of  mutuality  since 
the  plaintifT  ilid  not  agree  to  hire 
defendants  for  two  years,  and 
since  it  had  tiie  privilege  of  dis- 
charging tliom  at  any  time. 

Conrial  Mclwp.  Opera  Co.  v. 
Brin  (1910),  G6  Misc.  (X.  Y.) 
282;  123  N.  Y.  Supp.  G.  Where 
in  a  contract  for  ser\'ices  of  a 
musical  artist  it  is  provided  that 
upon  a  breach  he  shall  pay  as 
liquidated  damages  a  specified 
sum,  tlie  court  will  award  judg- 
ment for  such  sum  to  the  in- 
jured party  where  it  is  impossible 
to  ascertain  the  exact  loss  or 
damage  which  the  injured  party 
may  sustain  by  reason  of  the 

"^Corsi  v.  Mardzck  (ISoo), 
4  E.  D.  Smith  (N.  Y.),  1.  Ildd 
that  a  provision  in  a  contract 
between  a  singer  and  director  of 
opera  whereby  the  singer  for- 
feited one  month's  salary  ujion 
his  failure  to  appear  at  any  enter- 
taiiunent  for  whicli  he  might  W 
announced  unless  it  was  due  to 
illness  of  the  artist,  such  illness 

to  Ije  certified  by  the  doctor  ap- 
I)ointed  by  the  director,  was 

G aiders  Green  Am.  &  Dev.  Co. 
V.  Relph  (Eng.)  (1915), 31  T.  L.  R. 
343.  Defendant,  an  artist ,  agreed 
to  perform  twice  an  evening  at 
plaintiff's  music  hall.  For  his 
default  he  agreed  as  liquidated 
damages  to  pay  the  amount  he 
would  have  received  for  each 
performance.  The  contract  was 
subsequently  modified,  and  de- 
fendant defaulting,  the  court 
held  him  liable  in  damages  as 
computed  by  the  modification. 

>■»  Pador  v.  Solomon  (1899),  26 
Misc.  (N.  Y.)  125;  55  N.  Y. 
Supp.  956;  afT'g  25  Misc.  (X.  Y.) 
322.  In  a  contract  between  a 
theatre  manager  and  actt)rs  it 
w;is  provided  that  upon  a  breach 
by  the  actors  that  they  would 
become  liable  to  a  penalty  of 
S.')t)0.  Held,  that  was  rea-^onable, 
and  not  disproportionate,  and 
plaintiff  recovered.  Held  further 
tliat  the  fact  that  the  word 
"iM'nalty"  was  used  did  not 
make  it  such.    The  courts  would 



It  sometimes  happens  that  the  producer  and  actor 
agree  to  divide  the  profits,  and  that  one  of  the  parties 
subsequently  refuses  to  carry  out  his  agreement  in  that 
respect.  The  courts,  construing  a  contract  of  this  nature, 
usually  hold  it  to  be  one  of  employer  and  employe,  and 
not  one  of  joint  venture. ^^^ 

Where  the  actress  was  required  to  pay  her  manager  a 
specified  percentage  of  the  profits  above  twenty  thousand 
dollars  it  was  held  that  the  word  ''profits"  was  in- 
tended to  mean    ''net   receipts"  and  that    the  actress 

not  be  bound  by  the  word,  but 
rather  by  the  intent  of  the  par- 
ties, and  by  the  facts. 

^^'^Mallonj  V.  Mackaye  (1899), 
92  Fed.  (C.  C.  A.)  749;  Mackaye 
V.  Mallory  (cross  bill).  Mallory, 
a  theatrical  manager,  made  a 
contract  with  Mackaye  whereby 
defendant  agreed  to  give  his 
exclusive  services  to  Mallory  for 
a  period  of  ten  years  as  actor, 
author,  director  and  inventor, 
tiic  literary  property  and  inven- 
tion of  Mackaye  to  belong  ab- 
solutely to  Mallory.  Mallory 
agreed  to  pay  Mackaye  a  speci- 
fied sum  per  annum  and  in  addi- 
tion thereto  a  portion  of  the 
profits.  Held  that  the  relation- 
ship between  the  parties  was  one 
of  employer  and  employe  and 
not  one  of  jf)int  ventures. 

After    the    expiration    of    the 

second  year  Mackaye  abandoned 
the  contracts.  Held  that  the 
contract  was  entire  and  not 
severable  and  that  a  breach  as 
to  a  material  part  by  one  party 
discharged  the  other.  Heldjurlher 
that  where  after  an  abandon- 
ment of  the  contract  by  one 
party,  the  other  served  notice 
of  termination  as  provided  by 
the  contract,  the  giving  of  such 
subsequent  notice  of  termination 
did  not  constitute  a  waiver  of  the 

To  the  same  effect:  Thomas  v. 
Springer  (1909),  134  A.  D.  (N.  Y.) 
640;  119  N.  Y.  Supp.  400;  Keith  v. 
Kdlerman  (1909),  Ki!)  Fed.  {C.  C.) 
19G;  McLdlan  v.  (loodicin  (1S99), 
4.3  A.  D.  (N.  Y.)  148;  59  N.  Y. 
Supp.  290.  For  a  discussion  of 
and  excerpts  from  the  above 
cases,  see  Section  02. 

CHANGING    THK    MOTION    Pir'TT'RE  169 

could    not   charge   the   cost  of   production   against  the 

Section  53. — Changing  the  motion  picture. 

hi  making  a  motion  i)icturc',  scenes  are  taken  according 
to  a  set  plan,  the  scenario.  The  scenes  are  not  taken 
consecutivcl}',  in  their  logical  sequence,  but  in  such  se- 
quence as  will  complete  the  picture  most  rapidly  and 
involve  the  least  expense. 

]\Iany  scenes  are  taken  over  a  number  of  times  in  order 
to  insure  perfection  both  from  a  photographic  and  acting 

After  all  the  scenes  outlined  in  the  plan  are  taken,  the 
different  portions  of  tlie  film  are  assembled  and  viewed, 
and  those  scenes  which  are  inferior  in  acting  or  in  photog- 
raphy, those  which  are  dui)lications  and  those  which 
retai-d  the  action  are  "cut."  The  remahiing  scenes  con- 
stitute the  finished  film. 

The  ciuestions  which  naturally  present  themselves  are: 
may  the  motion  picture  producer  after  the  film  is  set  up 
in  its  final  form,  change  the  order  of  the  scenes;  may  he 
edit  scenes,  ma}-  he  interpolate  new  scenes  which  were 
taken  separately  from  the  scenes  of  the  film;  may  he  take 
scenes  of  one  picture  for  which  the  actor  si)ecially  posed 
and  make  use  of  such  scenes  in  an  entirely  difTerent  film; 
and  may  he  take  scenes  which  have  been  discarded  be- 
cause of  inferior  acting  or  poor  i)h()tograi)hy  or  because 
they  were  "repeats"  and  make  such  use  of  them  as  he 
sees  fit. 

»'JV/a(/cr  V.  Nethersolc  (1902),  71  A.  D.  (X.  Y.)  383;  75  X.  V. 
Supp.  987. 


None  of  the  above  questions  has  as  yet  come  before 
the  courts,  but  it  is  reasonable  to  assume  that  the  courts 
will  apply  to  such  questions  those  rules  of  law  which  have 
developed  in  the  common  law  for  the  protection  of 
creators  of  literary  work. 

The  analogy  is  very  close  between  the  owner  of  a  novel 
or  play  to  whom  the  author  or  playwright  has  sold  his 
work  outright  or  by  whom  the  author  or  playwright  was 
engaged  to  create  such  work,  and  that  of  an  actor  who 
has  posed  in  a  motion  picture. 

In  the  former  case  the  effort  of  the  artist  has  resulted 
in  a  work  which  portrays  hy  means  of  language  dramatic 
action.  In  the  latter,  the  effort  of  the  artist  has  resulted 
in  a  work  which  portrays  hy  means  of  pictures  dramatic 
action.  In  both  instances  the  legal  title  in  the  product 
is  in  the  owner  of  the  finished  work,  who  alone  may  ex- 
ercise dominion  over  it.  In  both  cases  the  artist  has  an 
interest  remaining  in  the  property  because  his  re-putation  and 
standing  are  dependent  upon  the  proper  use  of  the  prop- 
erty. Moreover,  in  both  cases  the  owner  of  the  work  may 
use  the  name  of  the  artist  in  the  exploitation  of  the  work. 

We  have  already  discussed  the  rights  of  an  author  or 
playwright  who  has  parted  with  title  to  his  work  by  out- 
right sale,  and  those  of  an  author  or  playwright  who  has 
never  had  title  in  the  results  of  his  labor  because  of  the 
relationship  of  oni])loyer  and  employe. '^^ 

Let  us  api)ly  those  rules  to  the  questions  before  us. 

The   finished   film  coming  from  the  cutting  room  is 
similar  to  the  work  of  the  author  or  playwright  delivered 
in  final  form  to  the  purchaser  thereof. 
'"^  See  Section  12, 


The  motion  picture  producer  may  change  the  order  of 
the  scenes,  may  edit  scenes  and  may  add  such  scenes 
which  have  been  discarded  because  they  were  "repeats" 
or  because  they  were  regarded  in  the  cutting  process  as 
rctartling  the  action;  hut  only  in  so  far  as  such  changes 
in  the  picture  are  not  radical  in  their  nature  or  do  not 
constitute  a  mutilation  of  the  film.  By  radical  is  meant 
such  a  change  as  will  occur  for  instance  where  a  feature 
film  is  cut  down  to  a  two-reel  film  or  vice- versa,  where  by 
adding  a  large  number  of  discarded  scenes  a  one  or  two 
reel  film  is  stretched  into  a  feature  picture.  With  re- 
spect to  mutilation  it  is  a  (luestion  of  fact  in  each  instance. 

The  remedy  both  in  the  case  of  a  radical  change  and  in 
that  of  mutilation  is  an  action  for  libel. "^^  Title  in  the 
work  being  in  the  motion  picture  producer  the  actor  may 
not  go  into  equity  to  enjoin  the  exhibition  of  such  changed 
film,'^'  unless  in  addition  to  the  libel,  there  is  the  clement 
of  "passing  off"  or  fraud  and  deception  of  the  ])ub]ic. 

»"  See  Section  12.  coinpleted  liis  work  therein.  The 
^^*CliapUn  V.  Essanay  (191G),  lihn  \v:is  then  released  a.s  a  four- 
N.  Y.  Law  Journal,  May  23d,  reel  feature  film.  The  plaintiff 
Hotclikiss,  .].;  alT'd  174  A.  D.  contended  that  under  his  con- 
(X.  Y.)  SOO.  IMaiiitiiT  posed  for  tract  tlie  defemlant  could  not 
defendant  in  a  two-reel  film  which  change  the  film  in  any  manner, 
wa.s  entitled  "  Burles(|ue  on  Car-  after  its  completion  by  him. 
men."  The  defendant,  after  the  without  first  securing  his  con- 
termination  of  plaintilT's  em-  sent.  He  also  contended  that 
ployinent,  inserted  a  number  of  the  .stretching  of  the  film  by  in- 
discarded  scenes  taken  in  the  serting  discarded  scenes  and 
course  of  the  making  of  the  film  scenes  taken  without  his  par- 
and  also  added  several  scenes  ticipation,  all  of  which  retarded 
made  without  the  |)articipati()n  the  action  and  destroyed  his 
of  the  plaintiff,  and  after  he  had  pruminciuv  in  tlie  lilm,  .seriously 



In  the  same  manner  that  an  author  or  playwright  has 
a  right  to  have  the  identity  of  his  work  retained,  so  an 
actor  is  entitled  to  have  the  identity  of  the  picture  in 
which  he  posed  retained.  The  motion  picture  producer 
may  not  separate  particular  scenes  from  the  film  and 
make  use  of  them  elsewhere,  nor  has  he  the  right  to  in- 

injured  his  reputation  and  stand- 
ing as  a  motion  picture  "  star." 

In  denying  a  motion  for  an 
injunction  pendente  lite,  the 
court  said: 

"Notwithstanding  the  earnest 
argument  of  counsel  for  the  plain- 
tiff, I  think  this  motion  should 
be  denied  principally  for  the  fol- 
lowing reasons: 

"(1)  Plaintiff's  right  under  par- 
agraph third  of  the  contract  of 
December,  1914  (assuming  such 
contract  to  have  remained  in 
forte  unaltered),  to  enjoin  the 
production  because  he  has  not 
approved  of  the  play  is  doubt- 

"(2)  The  play  itself  is  undoubt- 
edly the  property  of  the  Essanay 
Film  Manufacturing  Company, 
by  which  company  plaintiff  was 
employed,  and  the  circumstances 
of  plaintiff's  services  in  connec- 
tion with  the  creation  of  the  play 
distinguish  the  case  from  those 
cases  which  hav(!  njjplied  the 
prinfii)lo  of  another's  exclusive 
right  <;f  literary  j)roi)erty. 

"  (3)  The  facts  do  not  justify  a 
claim  that  the  association  of 
plaintiff's  name  with  the  play 
as  produced  amounts  to  a  fraud 
upon  the  public.  A  fair  construc- 
tion of  the  advertisements  of  the 
play  is  not  that  plaintiff  is  the 
author  or  producer,  but  that  he 
is  the  star  or  principal  actor. 

"(4)  It  is  not  claimed  that  so 
far  as  he  is  pictured  in  the  play 
his  part  is  garbled  or  distorted. 
Whatever  of  him  is  shown  is  a 
truthful  representation.  Whether 
plaintiff's  contract  rights  reserve 
to  him,  rather  than  to  his  em- 
ployers, the  sole  privilege  of  de- 
termining what  of  his  pictures 
shall  be  incorporated  into  the 
play  as  produced  is  at  least 

"(5)  Whether  plaintiff  will 
suffer  any  damage  from  the  pro- 
duction is  prol)lematical,  while 
an  injimction  is  certain  to  work 
considerable  loss  to  defendants." 

See  in  this  connection: 
Cahriel  v.  McCabe  (1896),  74 
Fed.  (C.  C.)  743. 


cori)oratc  new  scenes  taken  from  some  other  film  (jr 
photographed  separately  from  those  taken  specially  for 
the  film  in  question.  The  actor  has  the  same  remedies 
for  any  such  breach  that  an  author  or  pla>'^vright  has. 

Finally,  any  use  made  by  the  motion  picture  producer 
of  those  scenes  which  have  been  discarded  because  of 
their  inferiority  either  in  their  photography  or  acting, 
constitutes  a  hbel. 

Coming  now  to  the  exhibition  of  the  film,  the  po.sitives 
and  the  negatives  are  the  absolute  property  of  the  motion 
picture  producer.  He  may  release  them  at  any  time  he 
sees  fit,  and  through  whatever  exchanges  are  agreeable 
to  him.  The  films  may  be  showTi  in  any  theatres  wherein 
the  positives  are  dehvered.  In  other  words,  the  actor 
has  no  control  over  the  exploitation  of  the  film  unless  he 
has  contracted  otherwise. 

Nor  has  the  actor  any  control  of  the  advertising  issued 
in  connection  with  the  exploitation  of  the  film,  except  as 
by  contract  between  the  parties. 

Section  54. — Contracts  with  infants. 

Infants  are  engaged  to  pose  in  motion  pictures,  not 
only  in  minor  parts,  but  in  important  as  well  as  occa- 
sionally in  stellar  roles. 

Contracts  of  hire  are  voidable  at  the  option  of  the 
infant.  Upon  avoiding  the  contract  the  infant  may  gen- 
erally recover  for  services  rendered,  although  the  producer 
would  be  entitled  to  set  off  any  damage  he  may  have 
sustained  by  reason  of  the  infant's  avoidance. 

The  motion  picture  producer  may  not  enforce  a  nega- 
tive covenant  to  restrain  the  infant  from  working  for 



anyone  else  during  the  contract  period.  ^^^  The  courts  will 
not  enforce  such  a  negative  covenant  even  where  the 
guardian  or  parents  and  the  infant  are  both  parties  to 
the  agreement.  ^^^ 

^^'Aborn  v.  Janis  (1907),  62 
Misc.  (N.  Y.)  95;  113  N.  Y. 
Supp.  309. 

^'^Aborn  v.  Janis  (1907),  62 
Misc.  (N.  Y.)  95;  113  N.  Y. 
Supp.  309.  The  defendant  Elsie 
Janis,  an  infant,  had  contracted 
through  her  general  guardian 
with  the  plaintiff  for  her  services 
as  an  actress.  She  subsequently- 
rendered  services  for  one  Percy 
Wilhams  and  plaintiff  sought  to 
restrain  her  under  a  negative 
covenant.  The  court,  denying 
the  motion,  said:  "An  adult,  who 
was  bound  to  render  peculiar  and 
valuable  services  to  another, 
and  has  agreed  to  render  them 
for  no  one  else  during  the  term 
of  the  contract,  will,  it  is  to  be 
as.sumed,  continue  to  observe 
his  contract,  if  restrained  from 
rendering  his  services  to  another 
person;  that  is,  the  injunction 
in  its  cogent  effect  upon  adult 
intelligence  would  result  in  per- 
formance of  the  contract,  and  it 
is  for  this  reason  that  the  courts 
have  .•vdf)ptod  the  remedy  hy 
injunction  in  ca.scs  of  contract 
for  personal  services  as  a  means 

to  the  desired  end — specific  per- 
formance of  the  agreement  made 
by  the  party  thus  enjoined.  But 
if  prior  to  the  attainment  of  the 
age  of  twenty-one  years,  a  person 
may  not  ordinarily  make  a  con- 
tract because  of  that  absence  of 
mature  intelligence  which  the  law 
presumes  to  arise  from  nonage, 
how  may  it  be  said  that  tlie  infant's 
intelligence  will  be  affected  by  an 
injunction,  as  though  the  wisdom 
of  an  adult  were  present?  To 
determine  that  such  a  contract 
should  be  specifically  enforced 
by  resort  to  an  injunction  pro- 
hibiting the  breach  of  the  nega- 
tive covenant  would  be  to  say, 
in  effect,  that  the  infant,  a  per- 
son lacking  sufficient  judgment 
to  contract,  must  yet  exercise 
sufficient  judgment  as  to  his  or 
her  personal  interest  to  elect  be- 
tween performing  a  contract  not 
necessarily  wisely  made,  and 
indeed,  presumably  unwisely 
made,  or  take  the  harsh  alterna- 
tive of  starvation  for  a  refusal  to 
perform  at  all  or  for  an  omission 
U)  perform  in  a  sati.sfuctory 
manner;  and   all   this   while  the 



And  while  it  has  been  said  that  a  contract  of  the  infant 
beneficial  in  its  character  may  be  enforced,'*^  nevertheless 
neither  in  this  country  nor  in  England  will  the  contract 
for  j)ersonal  services  of  the  infant  be  deemed  such  a 

infant,  because  of  inunuturitj', 
is  doomed  to  be  under  the  protec- 
tion of  the  court  as  its  ward." 

VetU  V.  Osgood  (1837),  30 
Mass.  572;  Idc  v.  Brown  (1004), 
178  N.  Y.  26;  70  X.  E.  101. 

See  also:  Gordon  v.  Barr  (1917), 
N.  Y.  Law  Journal,  Jan  20.  Hen- 
drick,  J.:  "In  tliis  motion  to 
restrain  defendants  from  'ren- 
dering services  as  artists  or  the- 
atrical jxTformers,'  the  complaint 
alleges  that  defendants  have 
broken  their  contract  and  threaten 
to  continue  'to  do  the  various 
things  and  matters  in  contra- 
vention of  the  said  agreement.' 
Defendants  state  in  an  affidavit 
that  tlicy  were  only  twenty  years 
of  age  when  they  signed  the  con- 
tract, but  infancy  Ls  not  alleged 
as  a  defense.  Plaintiff  is  a  'man- 
ager' and  acts  as  an  intermediary 
between  tlieatrical  performers  anil 
their  employers.  Defendants  arc 
twin  sisters  and  perform  dancing 
acts  and  sing  at  music  halls  and 
cabarets.  They  claim  that  their 
sers'icos  are  neither  'unique, 
extraordinary    or    ix?culiar'   and, 

therefore,  if  they  have  broken 
the  contract,  plaintifif  has  an 
adequate  remedy  at  law,  and  cite 
Ilaintnerstein  v.  Mann,  122  Supp. 
278;  Lasky  Feature  Co.  v.  Suralt 
&  Fox  Fihi  Corp'n,  154  Supp. 
974,  They  also  argue  that  as 
plaintiff  was  not  a  theatrical 
manager,  but  simply  had  an 
interest  in  their  compensation, 
he  has  an  ample  legal  remedy. 
To  this  point  they  cite  Solman  v, 
Arcaro,  129  N,  Y,  Supp.  689.  I 
do  not  think  that  the  remedy 
of  injunction  can  be  invoked 
unless  plaintiff  makes  a  case 
reasonably  clear  and  in  my 
opinion  plaintiff's  case  lacks  the 
usual  requisites.  The  motion 
is  denied," 

'"/m  re  Livin-gston  (1866),  34 
N.  Y.  555. 

^'»Aborn  v.  Janui  (1907),  62 
iMisc,  (N,  Y.)  95;  113  N,  Y, 
Supp.  309;  Dc  Fratwcsco  v.  Bar- 
num  (Eng.)  (1889),  GO  L.  J.  Ch. 

In  New  York  it  is  a  misde- 
meanor to  employ  minors  under 
specified  ages  for  singing  or  danc- 



Section  55. — Inability  of  producer — when  studio  closed 
by  authorities. 

The  inability  of  a  manager  to  open  his  theatre  does  not 
reUeve  him  from  UabiUty  under  his  contract  of  employ- 
ment. ^^^  In  hke  manner  a  producer  is  not  freed  from 
habiUty  because  he  cannot  make  use  of  his  studio. 

But  the  manager  frequently  inserts  a  clause,  intended 
to  modify  his  liability  in  that  respect,  and  if  the  clause 
is  properly  worded,  he  may  succeed  in  doing  so.^^"    But 

ing — see  People  v.  Eicer  (1894), 
141  N.  Y.  129;  3G  N.  E.  4;  People 
V.  Stevens  (1893),  70  Hun  (N.  Y.), 

«9/e{ce  V.  Miner  (1915),  89 
Misc.  (N.  Y.)  395;  151  N.  Y. 
Supp.  983.  "The  defendant  at- 
tempts to  excuse  his  failure  to 
furnish  employment  for  the  week 
of  December  8th,  1913,  on  the 
ground  that  no  license  had  been 
obtained  for  the  theatre  in  which 
the  performances  were  to  be 
given,  and  it  is  claimed  that  this 
was  an  'interference  or  restraint 
of  a  legal  authority.  .  .  .'  That 
clause  plainly  contemplates  ac- 
tive interference  by  public  of- 
ficials, and  (loos  not  mean  re- 
straint by  law,  or  include  a  case 
where  defendant  failed  to  obtain 
or  cause  to  be  procured  a  theatre 

Ilardie  v.  Balmain  (Eng.) 
(1902),18T.  L.  R.  .5.39. 

^^''Halcroft  v.  West  End  Play- 
house, Ltd.  (Eng.)  (1916),  S.  C. 
182.  Where  defendant,  owners 
of  a  theatre  in  the  course  of  con- 
struction, had  contracted  with  a 
performer  to  appear  therein  after 
its  completion,  and  the  building 
of  the  theatre  was  not  completed, 
it  was  held  that  defendant  was 
not  liable,  as  the  contract  con- 
tained a  clause  that  it  was  "sub- 
ject to  the  said  theatre  being  in 
the  occupancy  and  possession  of 
the  management." 

Thring  v.  Lucas  (Eng.)  (1903), 
Strong  on  "Dramatic  and  Mu- 
sical Law,"  3d  Ed.,  p.  30.  Where 
the  theatre  was  closed  by  the 
authorities  in  order  that  certain 
repairs  should  be  made.  Held 
that  the  owner  was  not  liable 
under  a  contract  which  con- 
tained a  clause  that  "ICngage- 
ment  to  be  void  if  the  perform- 
ance is  objected  to  by  the  jjublic 



just  as  ofton  tho  huif!;uap;c  may  ijc  too  broad  or  iiiartiliciui 
and  tlic  result  will  be  that  the  actor  may  recover  dam- 

But  the  language  of  such  a  contract  is  strictly  construed, 
and  the  manager  who  assigns  his  interest  in  the  show  to 
another  may  not  evade  hability,  for  that  is  not  a  closing 
of  the  theatre.  1^2 

Section  56. — Questions  of  travel. 

In  filming  a  i)Iay  it  is  frecjuently  necessary  to  take 
scenes  at  places  other  than  at  the  studio  of  the  motion 
picture  producer.  An  actor  who  agrees  to  participate  in 
the  making  of  a  picture  knows  that  he  may  be  required  to 
travel  while  engaged  in  the  making  of  the  picture.    He  is 

authorities,  or  stopped  by  any 
cause  over  wliich  the  manage- 
ment have  no  control." 

'"  Hardie  v.  Balmain  (Eng.) 
(1902),  18  T.  L.  II.  539.  Plain- 
ti(T,  manager  of  a  company,  con- 
tracted with  defendant,  manager 
of  a  theatre,  to  appear  for  six 
niglits,  profits  to  be  divided;  if 
the  theatre  was  closed  through 
fire,  death  in  the  Royal  Family, 
"or  any  cause  whatsoever,"  con- 
tract to  be  terminated. 

Tlie  theatre  was  closed  on 
what  was  to  be  the  opening 
night,  not  having  been  completed. 
Ihid  that  the  manager  of  the 
theatre  was  liable  under  the 

"Any  cause  whatsoever" 
meant  any  cause  external  to  that 
outside  the  control  of  the  parties 
to  the  contract.  See  also:  liicc  v. 
Miner  (1915),  89  Misc.  (N.  Y.) 
395;  151  N.  Y.  Supp.  983. 

^'^Loretle  v.  Cullins  (Eng.) 
(190G),  Strong  on  "Dramatic  and 
Musical  Law,"  3d  Ed.,  p.  27. 
In  tlie  contract  for  plaintiff's 
appearance  for  a  week  at  the 
Hippodrome,  it  was  provided 
that  in  the  event  of  the  hall  clos- 
ing for  any  tlie  contract 
was  to  terminate.  The  manager 
assigned  his  interest  to  another. 
Held  this  was  not  a  closing,  and 
plaintiff  recovered. 


engaged  to  pose  in  the  picture  and  hence  agrees  to  pre- 
sent himself  at  the  places  where  the  picture  can  be  taken. 
Unless,  therefore,  he  expressly  provides  otherwise  in  his 
contract  of  employment  he  must  attend  at  the  places 
where  the  picture  is  to  be  taken  and  the  cost  of  trans- 
portation, as  well  as  of  his  board  and  lodging,  must  be 
borne  by  him."^ 

Section  57. — ^Booking  agencies. 

In  several  of  the  states,  laws  have  been  passed  re- 
quiring all  agencies  that  procure  employment  for  actors 
to  obtain  hcenses  and  otherwise  comply  with  certain  re- 
quirements. These  agencies  are  not  permitted  to  charge 
more  than  a  fixed  rate  and  for  a  stated  period  during 
which  the  actor  receives  a  salary.  ^^^ 

Attempts  are  often  made  to  evade  the  statute,  by  in- 
serting a  provision  in  the  booking  contract  that  the  person 
procuring  the  engagement  is  a  "manager"  and  that  the 
increased  rate  of  compensation  is  paid  in  consideration 
of  certain  services  rendered  or  to  be  rendered — more  or 

'"  Baity     V.     Melillo     (Eng.)  by  Chapter  587  of  the  Laws  of 

(1850),  10  C.  B.  282;  Smith  v.  1916. 

Herrivg-II all-Marvin     Safe     Co.  Interstate    Amusement    Co.    v. 

(1909)^  115  N.  Y.  Supp.  204.    Sec  Albert  (1913),  161  S.  W.  (Tenn.) 

in  this  connection:  Day  v.  Klaw  488.     A  bookinp;  ap;ency  which 

(1908),  112  N.  Y.  Supp.  1072.  had  made  a  contract  in  one  state 

On  the  question  of  the  distance  for   the   performance  of   certain 

he  may  be  required  to  travel  see:  acts  in  anotlier  state,  was  held 

Gath  V.  Interstate  Amusement  Co.  not  to  have  comphed  with  the 

(1912),  170  111.  App.  614.  provisions  of  the  latter  state  with 

'"<  (Chapter  700  of  the  Laws  of  respect  to  license  and  tax,  and 

1910   (New   York),  as   amended  so  could  not  recover. 



less  fictitious.  The  courts  have  i)re vented  recover}'  upon 
sucli  contracts.''-*^ 

The  booking  agent  is  entitled  to  his  compensation  when 
the  introduction  is  effected  and  the  actor  is  eventually 

Where  the  contract  of  emplo>Tiient  was  postponed  by 
the  actor  through  force  majeure  the  actor  is  not  obligated 
to  pay  until  he  actually  enters  upon  his  engagement. '^^ 

'»»il/e?/ers  v.  Walton  (1912),  76 
MLsc.  510;  135  N.  Y.  Supp.  574. 
Utld  that  the  plaintiff  who  sued 
for  services  which  he  claimed  he 
rendered  as  "manager"  under  a 
contract  calling  for  a  compensa- 
tion of  5%  of  any  salary  received 
by  defendants  for  performing  in 
a  vaudeville  sketch,  was  evading 
the  Theatrical  Agency  License 
law  (Chap.  700,  Laws  1910, 
amended  1916),  and  a  judg- 
ment in  his  favor  was  reversed. 

'*>  Colics  V.  Maugham  (Eng.) 
(1909),  Times,  Dec.  21.  One 
who  is  in  the  business  of  placing 
dramatic  compositions  for  pro- 
duction is  entitled  to  compensa- 
tion when  in  his  business  ca- 
pacity he  introduces  an  author  to 
a  manager  who  eventually  ac- 
cepts his  play. 

See  also:  King  v.  Broadhurst 
(1914),  164  A.  D.  (N.  Y.)  689; 
1.50  X.  Y.  Supp.  .376.  An  actor 
who    made    a    contract    with    a 

playwright  whereby  he  agreed  to 
procure  a  producer  of  a  play  pro- 
vided he  wa.s  given  the  leading  role 
may  recover  for  the  reasonable 
value  of  his  services  for  securing 
such  a  manager  where  he  waived 
his  right  to  play  the  leading  role 
upon  the  representation  of  the 
playwTight  that  he  would  "do 
what  is  right"  and  other  similar 

^^^  Foster's  Agency,  Lim.,  v. 
Romaine  (Eng.)  (1916),  32  T.  L. 
R.  545.  Plaintiff  sued  for  breach 
of  a  contract  whereby  he  was  to 
be  compensated  bj'  defendant 
for  procuring  an  engagement  in 
Australia.  of  the  dan- 
gers incidental  to  submarine  war- 
fare defendant  postponed  her 
engagement.  Held  there  could 
be  no  recovery,  a.s  defendant  had 
not  breached  the  contract. 

Auckland  &  Bninetti  v.  Col- 
lins (Eng.)  (1S9S),  14  T.  L.  R.  348. 
A  booking  agent's  agreement  for 

180  THE    LAW    OF    MOTION    PICTURES 

Section  58. — Workmen  Compensation  Acts. 

Most  of  the  states  as  well  as  the  federal  government 
have  enacted  compensation  acts. 

Actors  who  are  engaged  to  pose  in  motion  pictures  as 
well  as  directors,  camera  men  and  the  other  employes  of 
the  studio  probably  come  within  the  protection  of  the 
statute  in  a  number  of  states.  In  each  instance  it  is  al- 
ways a  question  of  the  construction  of  the  statute  in- 
volved. ^^^ 

The  interestmg  question  arises  whether  an  actor  em- 
ployed in  a  state  where  a  workmen's  compensation  act  is 
in  force  with  respect  to  members  of  the  theatrical  pro- 
fession can  enforce  his  rights  under  the  act  against  his 
employer  when  the  injury  occurs  without  the  state  while 
he  is  en  tour. 

The  question  is  ordinarily  one  of  construction  of  the 
statute.  In  Massachusetts  the  court  following  the  Eng- 
Ush  rule  "^  has  held  that  the  statute  has  no  extraterritorial 
commission  was  held  cnforcible  the  question  whether  vaudeville 
where  theatre  had  been  torn  actors  come  within  the  provisions 
down  and  re-built.  of  the  Massachusetts  statute. 

>»8  See  Bulletin  No.  203  (Janu-  See  also  for  recent  New  York 
ary,  1917),  of  the  United  States  Statute,  Laws  of  1916,  Chap.  622, 
Department  of  Labor;  Bureau  of  Group  40.  Entitling  to  corn- 
Labor  Statistics,  entitled  "Work-  pensation  those  engaged  in 
men's  Compensation  Laws  of  "printing,  engraving,  photo-en- 
the  United  States  and  Foreign  graving,  stereotyping,  electrotyp- 
Countries"  for  the  text  of  all  ing,  lithographing,  embossing, 
the  statutes  in  force  at  the  present  vmnnjadure  of  moving  piclure 
time.  machines  and  films.  .  .  ." 

See  also:  Bulletin  No.  2  (Jan.,  '»»  Tomalin  v.  Pearson    (Eng.) 

1913,  p.  5),  of  the  Massachusetts  (1909),  2  K.  B.  01;  Schwartz  v. 
Industrial    Accident    Board    on      India  Ridjbcr  (Eng.)  (1912),  2  K. 


effect.  It  held  that  the  employe,  a  citizen  and  resident 
of  that  state,  could  not  claim  the  benefits  under  the 
statute  although  the  employer  was  a  Massachusetts  cor- 
poration and  the  contract  of  hire  was  made  in  that  state, 
the  accident  having  occurred  in  the  state  of  New 

The  court  held  that  his  right  to  recover  damages  was 
determined  by  the  law  of  the  state  where  the  accident 
took  place. 

The  same  rule  has  been  enunciated  in  Michigan. -°'  In 
New  Jersey,  however,  the  contrary  conclusion  was 
reached. -°-  The  court  held  that  although  the  statute  was 
not  binding  without  the  hmits  of  the  state,  yet  the  statute 
could  require  a  contract  to  be  made  by  two  parties  to  a 
hiring  and  that  such  contract  should  have  an  extra- 
territorial effect.  The  court  found  that  there  was  an 
implied  contract  between  the  parties  to  compensate  for 
injuries  arising  out  of  the  employment,  and  that  such  con- 
tract could  be  enforced  irrespective  of  the  place  where 
the  injury  was  sustained. 

In  Ohio  the  same  result  was  arrived  at  as  in  New 

B.  299;  Hicks  v.  Maxlon  (Eng.),  laws   under   what   circumstances 

124  L.  T.  Rep.  135.  an  injury  to  tlie  person  will  af- 

^ Gould's     Case     (1913),    215  ford  a  cause  of  action.'" 

Mass.  480;  102  N.  E.  693.    "The  «"  Keyes  v.  Allerdycc,  Michigan 

subject  of   personal   injuries   re-  Industrial  Accident  Board,  .\pril, 

ceived    by    a    workman    in    the  1913. 

course     of     his     employment     is  "•  Deeny  v.  Wright  d-  Cobb,  36 

within  the  control  of  the  sovereign  N.  J.   L.  J.    121,  referred  to  in 

power  where  the  injury  occurs.  Bradbury  on  "Workmen's  Com- 

'It  must  certainly  be  the  right  pcnsation." 
of  each  state  to  determine  by  its 


Jersey,  not,  however,  upon  the  theory  of  an  impUed  con- 
tract, but  by  a  construction  of  the  statute  which  pro- 
xdded  for  compensation  for  injuries  or  death  ''wherever 
occurring."  -°^ 

In  New  York  an  action  was  brought  by  a  seaman  for 
injuries  received  through  negUgence  of  his  employer. ^'^'^ 
It  appeared  that  the  plaintiff  was  employed  by  defendant 
on  one  of  its  ships  for  a  voyage  from  Hamburg,  Germany, 
to  New  York  and  return.  While  in  New  York  harbor  the 
injury  complained  of  occurred.  The  defendant  relied 
upon  a  workmen's  compensation  law  of  Germany  as  a 
bar  to  the  action.  The  court  held  ''a  foreign  law,  to  which 
both  employer  and  employe  engaged  in  interstate  and 
foreign  commerce  and  transportation,  have  subscribed, 
and  upon  the  basis  of  which  the  contract  of  employment 
was  made  and  entered  into,  where  the  cars  or  ships  of 
the  employer  enter  our  state,  and  in  or  upon  which,  while 
within  our  borders  an  accident  occurs  to  the  employe 
through  his  employer's  negligence,  particularly  where  the 
contract  provides  for  a  fixed  compensation  in  case  of 
specified  injury  to  take  the  place  of  a  right  of  action  at 
law,  and  which  is  lawful  both  in  the  place  where  made  and 
that  in  which  the  cause  of  action  arose,  should  obtain 
recognition  and  enforcement  here." 

The    Workmen's  Compensation  Commission    of   New 

«"  Schmidt    Case,    Ohio    State  See  also  saino  case  on  appeal  from 

Liability  lioard  of  Awards,  July  order  to  compel  service  of  a  reply 

10,  VJ\'2  (riiiim  No.  0).  to  the  defense  set  up  in  the  answer, 

'"« Schweitzer  v.  Hamburg,  etc.,  149  A.  D.  (N.  Y.)  900;  134  N.  Y. 

Cesellxchnft     (1012),     78      Misc.  Supp.  812. 
(N.  Y.)  448;  138  N.  Y.  Supp.  944. 



York  has  nilod  that  the  operation  (jf  a  theatre  did 
not  fall  within  the  class  of  "hazardous"  occupa- 
tions. ^"^ 

Under  the  English  Compensation  Act  a  workman 
employed  by  a  lion  tamer  was  killed,  and  it  was  held  that 
the  accident  "arose  out  of  his  employment."  -^  .\nd 
whether  or  not  a  deceased  was  a  stage  manager  entrusted 
with  important  duties  or  whether  his  duties  were  manual 
was  the  question  involved  in  another  case.-°^ 

2"  Matter  of  Samuel  Adler, 
Workmen's  Compensation  Com- 
mission of  New  York,  Claim 
No.  ry2,437.  It  was  held  that  the 
operation  of'  a  theatre  did  not 
fall  within  the  class  of  "hazard- 
ous" occupations  and  a  widow 
was  denied  corni)cnsation  for  the 
death  of  her  husband,  a  property- 
man,  who  was  killed  by  falling 
through  a  trap-door. 

«» Ilapelman  v.  Poole  (Eng.) 
(inOS),  Strong  on  "Dramatic 
and  Musical  Law,"  3d  Ed.,  p.  56. 
The  Workmen's  Compensation 
Act  of  190G  is  here  construed.  A 
workman  was  employed  by  a 
lion  tamer  to  clean  out  the  lion 
cages,  etc.  While  in  charge  of 
the  cages,  a  lion  broke  loose,  and 
in  trying  to  get  the  lion  hack  in 
the  cage,  the  lion  turned  on  him 
and  killed  him. 

Held  that  the  accident  arose 
"out  of  and  in  the  course  of  his 

employment"  and  decedent's  per- 
sonal representatives  were  en- 
titled to  comix-n-sation. 

207  Rushbrook  v.  Grimsby  Palace 
Theatre  (Eng.)  (1908),  25 T.  L.  R. 
258.  The  question  was  whether 
a  "stage  manager  to  take  charge 
of  the  electric  plant  and  to  bill" 
was  a  "workman"  within  the 
meaning  of  the  Employers'  Lia- 
bility Act  of  1880.  Held  that 
he  was.  "Stage-managers  in 
some  theatres,  no  doubt,  in- 
volved important  duties,  but 
that  term  must  be  considered  in 
connection  with  the  actual  duties 
the  deceased  man  was  called 
upon  to  perform,  and  from  the 
evidence  in  this  case  it  seemeil 
clear  that  the  decea.sed  was  really 
nothing  more  than  a  foreman 
.scene-shifter  or  carjx?nter  earning 
25s.  a  week;  he  wa.s  mostly  if  not 
entirely  engaged  in  manual  la- 


Section  59. — Garnishment. 

The  salary  of  the  actor  is  subject  to  garnishment  in 
such  states  where  garnishee  statutes  have  been  enacted, 
the  manner  and  procedure  of  the  garnishment,  of  course, 
following  the  particular  state  statute. 

The  New  York  statute  is  typical  of  the  statutes  of  other 
states.  The  proceeding  is  regulated  by  Section  1391  of 
the  Code  of  Civil  Procedure,  which  provides  that  the 
Marshal  or  Sheriff  may  serve  a  garnishee  execution  upon 
the  employer,  who  is  then  required  to  deduct  from  the 
actor's  salary,  if  the  same  be  more  than  twelve  dollars 
weekly,  a  sum  equal  to  ten  per  cent  thereof,  and  pay  it 
over  to  the  levying  officer;  in  default  of  so  doing,  he  may 
be  sued  by  the  judgment  creditor  for  an  amount  up  to  the 
amount  of  the  judgment. 

It  has  been  held  in  England  that  an  actor's  salary  may 
not  be  attached  or  garnisheed  until  it  is  actually  due,  and 
only  while  it  is  unpaid. -°^ 

A  distinction  is  drawn  between  the  remedy  of  garnish- 
ment and  that  of  proceedings  supplementary  to  execution. 
Where  the  salary  has  not  been  wholly  earned  and  become 
wholly  due,  the  judgment  creditor  may  only  proceed  by 
garnishee  proceedings. -°^ 

^^  Hall     V.     Pritchetl     (Eng.)  under  execution,  and  that  such 

(1877),3  Q.  B,  D.  215.  fund    may    be    seized    whecever 

2««  Hayward  v.  Ilayward  (1917),  found.  But  this  is  no  such  case. 
178  A.  D.  (N.  Y.)  92.  "It  is  When  the  execution  was  issued 
quite  true  that  a  fund  represent-  there  was  no  fund  holoiising  to 
ing  a  salary  earned,  whether  in  the  defendant  representing  salary 
the  pos.scssion  of  the  employer,  earned  in  the  hands  of  the  Pal- 
or  of  the  employe,  or  of  a  third  ace  Operating  Cori)()rati()n  (em- 
person,  i.s  not  exempt  from  levy,  ploycr).      The    salary    was    not 


Section  60. — Serial  stories. 

In  the  production  of  the  serial  picture  an  interesting 
question  arises.  For  this  kind  of  a  picture  the  actor 
employed  is  usually  one  of  considerable  fame  and  popu- 
larity, and  consetjuently  is  able  to  dictate,  to  a  great 
extent,  the  terms  of  his  contract.  He  usually  demands 
that  each  installment  of  the  serial  picture  shall  be  ap- 
proved by  him  and  so  marked  before  its  release,  and  the 
contract  provides  therefor. 

Suppose  the  artist  arbitrarily  and  in  bad  faith  refuses 
to  a])])rove  of  an  installment  of  the  picture?  The  producer 
has  invested  his  money,  and  is  seemingly  at  the  mercy  of 
the  artist  who,  perhaps  already  contracting  with  another 
producer,  finds  it  to  his  interest  to  impede  and  delay  the 
release  of  the  installment.  In  such  case,  the  producer  is 
at  liberty  to  disregard  that  covenant  in  the  contract,  and 
proceed  with  the  release  of  the  installment  without  obtain- 
ing the  actor's  approval. 

On  the  other  hand,  where  the  actor  is  actuated  by 
proper  motives  and  there  is  no  element  of  fraud  or  bad 
faith  involved,  the  producer  is  at  his  mercy,  and  may  not 
release  the  film  without  the  apj^roval  of  the  actor,  no 
matter  how  whimsical  and  arbitrary  the  latter  may  be. 

In  some  respects,  a  contract  containing  a  clause  of  this 
kind  is  very  similar  to  a  contract  where  the  services  to 

only   not  due  :it  that  time  but  Code.     Upon  tlie  return  of  the 

was  «)nly  i)arti:illy  earned.    There  execution    unsatisfied,    an    order 

is    only    one    way    provided    by  may    be    ol)tained    garnishing   a 

statute  for  reacliing  an  accruing  percentage  of  salary  due  or  to 

salary,  and  that  is  the  means  pro-  become  due." 
vided    in    Section    13'Jl    of    the 


be  performed  are  to  be  ''satisfactory"  to  the  employer. 
Complete  satisfaction  with  all  the  work  is  in  each  instance 
made  a  condition  precedent. ^^^ 

Section  61. — Escrow  agents. 

A  number  of  artists  who  are  sought  after  a  great  deal 
by  producers,  have  devised  a  rather  unique  method  of 
insuring  payment  of  the  salaries  agreed  to  be  paid  to  them 
under  their  contract. 

A  bank  or  trust  company  is  made  escrow  agent.  The 
motion  picture  producer  deposits  with  the  escrow  agent 
a  sum  equal  to  the  total  amount  agreed  to  be  paid  the 
artist,  and  the  bank  or  trust  company  is  dkected  to 
make  payments  to  the  artist  at  stated  periods. 

The  artist  is  thus  assured  his  salary  if  he  lives  up  to  the 
terms  of  his  agreement,  regardless  of  changes  in  the  fi- 
nancial condition  of  the  producer.  The  contract  usually 
provides  as  well  that  in  the  event  of  bankruptcy,  the 
impaid  balance  shall  become  due  and  payable  at  once  to 
the  artist. 

On  the  other  hand,  the  producer  is  protected  by  a  pro- 
vision to  the  effect  that  in  the  event  the  artist  breaches 
his  contract,  he  may  give  notice  to  the  escrow  agent  who 
is  then  required  to  withhold  payments  to  the  artist  until 
arbitrators  provided  for  under  the  contract  render  their 

The  escrow  agent  is  made  a  party  to  the  agreement. 
Its  duty  ends  if  it  complies  with  the  terms  of  the  agree- 
ment.   Tf  it  arl)itnirily  assumes  to  act  on  its  own  initiative 
and  disregards  the  express  terms  of  the  contract,  it  be- 
»">  Sec  Section  38. 



comes  \vd\)\v  to  the  injurctl  i)urty  for  wliutcvcr  damages 
he  has  sustained  thereby. 

Section  62. — When  joint  venture. 

The  fact  that  an  actor  and  a  manager  agree  to  share 
the  receipts  of  a  play  does  not  necessarily  stamp  the 
transaction  as  a  joint  venture.  An  agreement  to  share 
in  the  losses  is  the  true  test  of  a  joint  venture.-" 

2"  Thomas  v.  Springer  (1909), 
134  A.  D.  (N.  Y.)  640;  119  N.  Y. 
Supp.  460.  An  agreement  be- 
tween a  manager  of  a  tlieatrical 
company  and  a  theatre  owner 
whereby  the  latter  is  to  receive  a 
percentage  of  the  gross  receipts, 
the  proprietor  of  the  theatre  to 
furnish  tlie  scenery,  equipment 
and  regular  employes  of  the 
theatre,  does  not  create  a  partner- 
ship. The  parties  are  inde- 
pciulent     contractors.  Unless 

there  be  an  agreement  to  share 
profits  and  losses  there  is  no  co- 

Keith  V.  Kellerman  (1909),  169 
Fed.  (C.  C.)  196.  Tlie  agree- 
ment between  the  parties  pro- 
vided tliat  defendant  was  to 
render  her  specialty  as  actress, 
in  consideration  of  fifty  per  cent 
of  the  profits.  It  was  held  tliat 
the  contract  was  not  one  of  co- 
partnership but  one  of  employ- 
ment; the  test  being  "whether 

the  parties  are  jointly  interested 
as  principals  and  may  bind  each 
other  by  their  acts  or  engage- 
ments within  the  scope  of  the" 

Mallory  v.  Mackaye  (1899),  92 
Fed.  (C.  C.  A.)  749.  Plantiff, 
a  theatrical  manager,  contracted 
with  defendant,  an  actor,  wliereby 
defendant  agreed  to  render  his 
exclusive  services  to  plaintifT  as 
an  actor,  author,  director  and 
inventor,  all  of  his  creations  to 
l)ec()ine  the  property  of  the  plain- 
tilT  in  consideration  for  all  of 
which  plaintifT  bound  himself  to 
pay  defendant  a  specified  sum 
per  annum  ami  in  addition 
thereto  a  |)orti()n  of  the  profits. 
The  relationship  existing  between 
tliem  was  held  to  be  that  of  em- 
|)l()yer  anil  employe  and  not  that 
of  joint  ventures. 

See  also:  Mayer  v.  Xelhersole 
(1902),  71  A.  D.  (N.  Y.)  383;  75 
N.   Y.   Supp.   987;   Goldberg   v. 



Where  the  relationship  is  that  of  employer  and  employe 
the  remedy  for  a  breach  is  an  action  at  law  in  damages. -^^ 

But  where  the  contract  provided  that  defendant  furnish 
the  building  and  pay  certain  of  its  expenses,  and  the 
plaintiff  was  to  give  his  time  and  skill  in  carrying  on  a 
theatre  therein  and  act  as  manager  thereof,  the  defendant 
to  receive  a  fixed  sum  as  rent,  and  in  addition  thereto 
one-half  of  the  net  profits,  losses  to  be  borne  equally  by 
the  parties,  this  was  held  to  create  a  partnership,  and  it 
made  no  difference  that  the  parties  referred  to  themselves 
throughout  as  lessor  and  lessee.^^^ 

Popular  Pictures  Corp.  (1917), 
N.  Y.  Law  Journal,  Jan.  20.  The 
appeal  taken  in  the  action  and 
reported  in  (1917),  178  A.  D. 
(N.  Y.)  86,  was  not  from  the 
order  made  in  pursuance  of  the 
motion  above  reported. 

"2  McLellan  v.  Goodwin  (1899) , 
43  A.  D.  (N.  Y.)  148;  59  N.  Y. 
Supp.  290.  Plaintiff,  a  theatrical 
manager,  agreed  to  conduct  a 
tour  of  the  defendant,  an  actor. 
Defendant  was  to  receive  50%  of 
the  receipts  and  was  to  pay  his 
company  of  players  and  for  cos- 
tumes out  of  such  moneys.  Plain- 
tiff agreed  to  pay  other  expenses 
out  of  his  share  of  the  receipts. 
Plaintiff  did  not  conduct  a  tour 
for  defendant  and  defendant 
earned  moneys  by  employment 
elsewhere.  The  action  was 
brought    for    an    accounting    of 

moneys  earned  by  defendant. 
Held  plaintiff  was  not  in  any 
event  entitled  to  share  in  earn- 
ings of  defendant  as  such  earn- 
ings were  not  received  by  de- 
fendant from  a  tour  conducted 
by  plaintiff;  that  plaintiff's  rem- 
edy, if  at  all,  was  one  at  law  for 
damages  for  breach  of  contract. 

2"  Leavitt  v.  Windsor  Land  & 
Investment  Co.  (1893),  54  Fed. 
(C.  C.  A.)  439. 

See  also:  Cole  v.  Rome  Savings 
Bank  (1916),  96  Misc.  (N.  Y.) 
188;  161  N.  Y.  Supp.  15.  De- 
fendant Rome  Savings  Bank 
made  an  agreement  with  one 
Edwards  whereby  R.  gave  the 
use  of  a  theatre  which  it  owned 
for  one  year  upon  the  following 

E.  agreed  to  deduct  from  tlie 
gross  receipts  a  specified  sum  to 



Where  a  joint  venture  or  copartnership  is  created  for 
the  exploitation  of  literary  works,  the  loss  of  prestige  in 
the  business  of  one  ot  the  partners  is  a  vahd  cause,  it 
would  seem,  for  a  dissolution.-" 

The  joint  venturers  are  bound  to  use  the  utmost  of  good 
faith  toward  each  other. -''^ 

be  applied  to  his  own  uses  and 
from  the  balance  pay  for  insur- 
ance, taxes,  cost  of  theatre  license, 
advertising,  labor  employed  and 
other  incidental  expenses  neces- 
sary to  the  operation  of  the 
theatre  and  pay  to  R.  a  specified 
sum  per  year  and  at  the  end  of 
the  year  pay  to  R.  one-half  of 
the  surplus  profits.  If  upon  the 
termination  of  the  lease  the  net 
receipts  proved  insufficient  to 
make  the  above  payments  then 
the  entire  net  receipts  were  to  be 
paid  to  R.,  less  a  specified  sum 
per  month  to  be  retained  by 

Held  not  to  create  a  co-partner- 
ship. See  also:  Atchison-Ely  v. 
T/(omrt.s  (1905),  104  A.  D.  (N.  Y.) 
3GS;03N.  Y.  Supp.  093. 

2'«  Waite  V.  Aborn  (1901),  60 
A.  D.  (N.  Y.)  521;  69  N.  Y. 
Supp.  967.  Plaintiff  and  de- 
feiulant  entered  into  a  copartner- 
ship for  a  specified  period  to  con- 
duct the  business  of  "making 
productions  of  operas,  extrava- 
ganzas  and   for   general   amuse- 

ment purposes."  Plaintiff  was 
to  have  charge  of  the  business 
of  the  enterprise  and  defendant 
of  the  artistic  branch.  Ildd  that 
a  complaint  asking  for  a  dissolu- 
tion of  the  partnership  because 
the  carrj'ing  on  of  the  business 
had  become  impracticaljle  on 
account  of  the  bad  reputation 
acquired  by  defendant  in  the 
theatrical  world  and  that  its 
continuance  could  not  be  ef- 
fected .save  with  loss,  stated  a 
cause  of  action. 

^1*  Selwyn  cfc  Co.  v.  Waller  et  ano. 
(1914),  212  N.  Y.  507;  106  X.  E. 
321.  Under  an«  agreement  for 
the  production  of  a  play  and  the 
sharing  of  profits  and  losses  in- 
cluding the  payment  of  royalties 
to  the  autliors,  one  of  the  jxirties 
to  the  enterprise  was  held  bound 
to  disclose  to  his  associate  the 
fact  that  he  had  previously  ac- 
quired from  the  authors  a  one- 
fourth  interest  in  such  royalties. 
Parties  about  to  engage  in  a 
joint  venture  whether  as  partners 
inter  sese  or   not  owe   to  each 


Section  63. — Royalties  in  addition  to  salary. 

Contracts  of  employment  occasionally  provide  for  com- 
pensation of  the  actor  who  poses  for  motion  picture  com- 
panies by  salary  and  royalties  based  upon  the  earnings  of 
the  picture.^^^ 

If  the  contract  is  silent  as  to  the  period  during  which 
such  royalties  are  to  be  paid,  the  actor  is  nevertheless  en- 
titled to  them  even  where  his  contract  of  employment  has 
expired  by  Umitation;  and  his  right  to  such  royalties  con- 
tinues as  long  as  the  picture  is  exploited. 

He  may  not,  however,  compel  the  producer  to  exhibit 
the  film  in  which  he  has  posed.  A  failure  to  exploit  the 
picture  merely  relegates  the  actor  to  his  remedy  at  law 
for  damages  for  the  breach,  with  the  difficulty  of  estab- 
lishing some  basis  upon  which  damages  may  be  awarded. ^^^ 

Section  64. — Law  governing  validity  of  contract. 

Where  a  contract  is  made  in  a  foreign  jurisdiction,  but 
is  to  be  wholly  performed  within  the  United  States,  the 
interpretation  and  validity  of  the  contract  will  generally 
be  subject  td  review  by  the  American  courts.  And  the 
courts  will  not  be  ousted  of  jurisdiction  by  the  contract 
of  the  parties  between  themselves. ^^^ 

other  the  utmost  good  faith  and  (N.  Y.)  260,  containing  a  valu- 

the  most  scrupulous  honesty.  able  discussion  of  the  method  by 

2'"  Drc.s.s7er    v.    Keijslone    Film  which  future  i)rofits  may  be  esti- 

Co.   (1915),  N.  Y.  Law  Journal,  mated  as  to  motion  pictures. 

Aug.  5th.  For  additional  cases,  see  Sec- 

^^'' Benyaknr  v.   Schcrz   (1905),  tion  49. 

103  A.  D.  (N.  Y.)  192.    See  also:  ='^  Eiigd  v.  .S7/ (//;(•//  (1915),  KiO 

Levison  v.  Oes  (1917),  98  Misc.  Ai)p.  Div.  (N.  Y.)  394;  151  N.  Y. 


In  general,  the  contract  niubt  be  valid  in  the  place  of 
its  performance. 

^\^lere  a  booking  agency  conducting  a  business  from 
its  head(iuarters  in  Chicago,  had  contracted  to  provide 
troupes  for  theatres  in  Tennessee,  it  was  held  that  since 
it  had  not  complied  with  the  laws  of  that  state,  it  could 
not  recover,  as  performance  was  held  to  be  within  that 

Section  65. — Contract  labor  and  exclusion  laws. 

Under  the  Federal  statutes  a  contract  made  with  an 
alien  to  jDerform  labor  or  services  within  the  United  States 
or  its  territories  previous  to  the  immigration  or  unporta- 
tion  of  such  person  into  the  United  States  is  void,  and 
any  person,  firm  or  corporation  which  assists  or  encourages 
such  inmiigration  or  importation  is  guilty  of  a  crime  and 
is  subject  to  heavy  penalties. "° 

Supp.  593.    The  contract  between  Co.  (1914),  211  X.  Y.  346;   105 

the   parties   i)rovicle(I   that:   "In  N.  E.  653;  Lorenz  v.  Bartuschck,  of  a  dispute,  both  contract-  City  Court  of  X.  Y.,  Xo.   116. 

ing  parties  agree  to  submit  to  Judgment  Roll  filed  May  18, 1916. 

the   jurLsdiction    of   the    Vienna  ^^'^  Albert  v.   Interstate  Amuse- 

courts."  rnerU    Co.     (1913),    161    S.    W. 

IIvl'l  that  such  provision  was  (Tenn.)  488. 

not  exclusive,  and  that  the  courts  Oti  the  question  whether  a  phrase 

would  not  look  with  favor  upon  of  limitation  relates  to  all  the  pre- 

atteinpts  to  oust  them  of  juris-  ceding  terms  or  modifies  the  term 

diction.  immediately  preceding  such  phrase 

"It  is  entirely  plain  that  such  sec:  Ilodkin^  v.  McDonald  (1907), 

agreements    should    be    strictly  123  Mo.  App.  566;  100  8.  W.  50S; 

construed    and    should    not    be  State  v.  Scaffer  (1905),  95  Minn, 

extended  by  implication."  31 1;  104  X.  W.  139. 

Mcac/iem  v.  Jamestown  li.  IL  --"  Compiled     Statutes    of    the 



These  statutes,  however,  have  been  strictly  construed 
and  it  has  been  held  that  only  manual  unskilled  laborers 
are  intended  to  come  within  the  prohibition,--^  and  the 
making  of  contracts  with  actors,  directors  or  skilled  me- 
chanics would  not  be  a  violation  of  the  statute. ^-^ 

Nor  would  a  Chinese  actor  be  excluded,  since  he  has 
been  held  to  be  no  "laborer"  under  the  exclusion  laws.^^^ 

Section  66. — Performance  in  unlicensed  theatre. 

An  actor  who  performs  in  an  unHcensed  theatre  is 
estopped  from  recovering  for  his  services,  and  the  owner 
of  such  theatre  is  likewise  powerless  to  enforce  a  contract 
to  which  he  is  a  party.  ^^^ 

United  States  (pub.  1913),  Sec- 
tions 4245, 4246, 4248, 4250, 4251. 

"1  United  States  v.  Gay  (1899), 
95  Fed.  (C.  C.  A.)  226. 

222  United  States  v.  Thompson 
(1889),  41  Fed.  (C.  C.)  28;  United 
States  V.  Edgar  (1891),  45  Fed. 
(C.  C.)  44;  aff'd  48  Fed.  (C.  C.  A.) 

223 /2e  Ho  King  (1883),  14  Fed. 
(C.  C.)  724.  The  relator,  Ho 
King,  wa.s  a  Chinese  actor.  Land- 
ing at  Portland,  he  was  detained 
under  the  Exclusion  Law.  A  writ 
of  habeas  corpus  issued,  and  it 
was  held  that  an  actor  or  theatri- 
cal performer  was  not  a  "la- 
borer" under  that  Act,  and  that 
he  could  come  and  go  at  ple;isure. 

"*Levy  V.  Yates  (Eng.)  (1838), 

8  Ad.  &  El.  129;  35  E.  C.  L.  352. 
Where  the  owner  of  a  theatre  has 
not  obtained  a  license  as  required 
by  law,  a  contract  made  between 
himself  and  a  theatrical  company 
through  a  booking  agency  can-: 
not  be  enforced. 

De  Begnis  v.  Armistead  (Eng.) 
(1833),  25  E.  C.  L.  47;  10  Bing. 
107.  The  contract  of  a  theatre 
owner  was  held  unenforceable 
because  of  his  failure  to  comply 
with  the  law. 

As  to  what  constitutes  an  illegal 
contract  for  performance  at  a 
theatre.  See  also:  Eiving  v.  Os- 
baldiston  (Eng.)  (1837),  2  My.  & 
C-r.  53;  Gallini  v.  Lfdnnie  (Eng.) 
(1793),  5  Term  Rep.  212;  (hay  v. 
The    Oxford    (iMig.)     (1905),    21 


But  the  actor  who  so  performs  must  have  actual  notice 
of  the  fact  that  his  perfonnance  is  unlicensed.  The  dis- 
tinction is  made  between  ignorance  of  the  law  and  ig- 
norance of  a  fact;  and  the  want  of  notice  on  the  actor's 
part  in  this  ease  would  be  ignorance  of  a  fact  only,  and 
would  not  bar  a  recovery.--^ 

From  the  foregoing  it  may  be  concluded  that  a  dis- 
triliutor,  who  has  contracted  for  film  rental  with  an  ex- 
hibitor who  has  failed  to  secure  the  proper  license  from 
the  authorities,  may  recover  damages  for  the  breach,  pro- 
viding he  is  unaware  of  the  exhibitor's  derelictions.  In 
deahng  with  the  exhibitor  he  is  not  bound  to  make  any 
special  inquiries,  as  he  may  be  permitted  to  assume  that 
the  theatre  is  Ucensed.  That  presumption  exists  in 

Section  67. — Contracts  for  transportation — damages. 
When  a  common  carrier  undertakes  the  transportation 

T.  L.  II.  664;  aflf'd  22  T.  L.  R.  that    the   performance   was   un- 

684;  Scott  v.  McSaughlon  (Eug.)  licensed  he  was  entitled  to   re- 

(I90S),  Times,  Nov.  25th.  cover,  and  defendants  would  not 

"'•  Roys  y.  Johnson  ct  al.  (l8oQ),  be    ix-nnitted    to    sustain    such 

7  (iray  (,  162.     The  actor  defense,  having  themselves  been 

rendered  his  services  and  brought  guilty  of  the  unlawful  act. 

this  action  to  secure  comi>  --'^  Roihcdl  v.  Rcdge  (Eng.),  1 

tion  therefor.    Defendants  set  up  C.  &  P.  220;  11  E.  C.  L.  374.    The 

the  fact  that  the  plaintiff  acted  action    was    brought    against    an 

in  an  unlicensed  theatrical  exhi-  actor  for  breach  of  contract  for 

bition  and  not  entitled  to  com-  failure    to    appear.      Held    that 

pensation    as    the   giving   of   an  there    was    a    presumption    that 

unlicen.sed  theatrical  {>erformance  the    theatre    was    licensetl    from 

was    unlaN^'ful.       Ihhl     that     so  the  fact   that   jx'rformances   had 

long   as   plaintiff  did  not   know  been  going  on  uninterruptedly. 


of  an  actor  and  his  scenery,  the  carrier  is  not  prima  facie 
charged  with  any  unusual  degree  of  responsibility.  To 
hold  the  company  liable  for  neglect  or  delay,  it  must  be 
established  that  a  contract  existed  by  which  the  company 
was  fully  apprised  of  all  the  facts  in  order  that  it  may 
be  said  that  the  loss  of  profits  of  the  actor  was  within  its 
contemplation.  Such  a  contract  is  not  proven  merely  by 
showing  that  the  actor  bought  a  ticket;  more  than  that 
is  required. 2-^ 

But  where  such  a  contract  is  proven,  it  becomes  im- 
portant to  determine  whether  the  actor  may  prove  and 
recover  damages  including  the  profits  he  might  have 
made  had  he  been  able  to  perform.  In  New  York  the 
rule  seems  to  be  that  such  damages  are  not  incidental  to 
and  proximate  to  the  injury,  and  may  not  be  proven.--^ 

227  Southern  Ry.  v,  Myers  (1898),  raony  in  reference  to  the  specula- 

87  Fed.  (C.  C.  A.)  149.    An  ac-  tive  profits  which  the  passenger 

tor   was    injured    by    the    over-  might  have  made  if  he  had  been 

turning  of  a  sleeping-car.     "In  safely  carried  through  on  schedule 

the  absence  of  a  definite  contract  time." 

for  carriage  to  a  given  point  by  ^"^  Brown  v.  Weir  (1904),  95 
a  given  time,  with  such  reasons  A.  D.  (N.  Y.)  78;  88  N.  Y.  Supp. 
for  its  making  as  would  naturally  479.  Plaintiff,  an  actress,  dehv- 
lead  the  agent  of  the  carrier  to  ored  a  trunk  containing  all  of  her 
contcnii)Iate  the  profits  the  pas-  theatrical  costumes  to  the  Atlains 
senger  expected  to  realize,  it  is  I'Apress  Co.  for  transmission. 
clear  that  the  damage  claimed  The  trunk  was  not  delivered  for 
for  the  failure  to  realize  such  a  period  of  ten  days  because  of 
profits  is  too  un(;ertain  and  re-  dispute  as  to  charges,  the  com- 
mote, and  that,  until  competent  pany  having  demanded  an  im- 
proof  tending  to  show  such  con-  proper  amount.  Held  that  plain- 
tract  was  offered  and  admitted,  tilT  could  not  recover  as  damages, 
it  wa.s  error  to  admit  any  testi-  of  earnings  during  the  period, 

POWER   OF   company's   OFFICER   TO    CONTRACT       195 

But  ill  Illinois  the  courts  have  held  otherwise;  -^  and  the 
rule  in  that  jurisdiction  seems  to  be  in  accord  with  the 
dicta  of  the  Federal  court  in  Southern  Railway  v.  Myers. 

Section  68. — Power  of  company's  officer  to  contract — 
A  contract  of  employment  with  an  actress  has  been  held 
valid  when  signed  by  the  president  and  general  manager 
of  the  company. '-^°  So  too,  where  the  director-general  of 
a  traveling  show  extends  a  contract  for  an  additional 

first,  because  she  failed  to  make 
rea.sonable  exertions  to  make  tlie 
injury  as  light  as  possible,  and 
secondly  because  damage  for 
breach  of  contract  was  only  that 
whicii  was  incidental  to  and  was 
directly,  caused  by  the  breach, 
antl  might  reasonably  be  pre- 
sumeil  to  have  entered  into  the 
contemi)lation  of  the  parties. 

"'Illinois  CetUral  v.  Byrne 
(1903),  205  111.  9;  68  X.  E.  720. 
Suit  to  recover  damages  for 
failure  to  haul  car  loaded  with 
scenery  and  theatrical  property. 
It  was  claimed  that  by  reason  of 
such  failure  appellee  mis.scd  an 
engngcnuMit  whicli  hail  been  ad- 
vertised and  for  which  tickets 
had  been  sold. 

Held  that  it  was  proper  for  the 
jury  to  consider  the  nature  of 
the    plaintilT's   business   and    his 

profits  for  a  reasonable  period 
next  preceding  the  time  when 
the  contract  was  violated. 

■^"King  v.  [Vill.  J.  Block  Am. 
Co.  (1908),  115  N..Y.  Supp.  243; 
aff'd  132  A.  D.  (X.  Y.)  925;  116 
X.  Y.  Supp.  1139.  It  is  within 
the  implied  powers  of  the  presi- 
dent and  general  manager  of  the 
defendant  to  bind  the  defendant 
in  the  employment  of  an  actress. 

-"  Kddi/  V.  America 71  Amuse- 
ment Co.  (1913),  132  Pac.  (Cal.) 
8.3.  .\  person,  having  charge 
generally  of  the  defendant's  trav- 
eling show  having  the  title  of 
director  general  and  having  the 
authority,  when  authorizeti  in 
writing  by  the  general  manager 
of  the  defendant  to  emplDy  and 
discharge  artists  and  who  em- 
ployed plaintifT  for  one  .-reason 
may  bind  the  defendant  in  ex- 



But  it  has  been  held  that  the  president  of  a  theatrical 
company  could  not  appoint  a  general  business  manager 
without  the  consent  of  the  directors,  and  that  the  business 
manager  did  not  have  the  inherent  power  to  engage 
performers  for  a  year.-^- 

A  booking-agent  may  contract  within  his  apparent 
authority,  and  secret  instructions  are  not  binding  upon 
third  parties  with  whom  he  contracts.-''^ 

And  a  contract  signed  by  a  manager  will  make  him 
personally  liable  if  there  is  nothing  in  the  body  of  the 
contract  to  indicate  that  the  contract  is  made  with  his 

tending  the  employment  agree- 
ment for  an  additional  season. 

See  in  this  connection:  Arm- 
strong V.  Majestic  Motion  Picture 
Co.  (1914),  87  Misc.  (N.  Y.)  141; 
149  N.  Y.  Supp.  1039. 

^^'  Vogel  V.  *S^.  Louis  Museum 
(1880),8Mo.  App.  587. 

"3  Interstate  Ajnusemcnt  Co.  v. 
Albert  (1913),  161  S.  W.  (Tcnn.) 
488.  Held  that  plaintifY,  who 
operated  a  booking-agency  in 
Chicago  was  the  agont  of  the  de- 
fendants, who  operated  a  theatre 
in  Tennessee. 

Bergere  v.  Parker  (1914),  170 
S.  W.  (Texas)  80S.  Held  that 
where  a  person  was  held  out  as 
defendant's  hooking  ag(!nt,  pri- 
vate instructions  to  such  agent 
were  not  binding  upon  parties 
who  without  knowledge  of  such 

instructions  contracted  with  de- 
fendant through  the  agent  and 
that  his  acts  were  within  his  ap- 
parent authority. 

""Crau  V.  McVicker  (1874),  8 
Biss.  7;  10  Fed.  Cas.  No.  5,708. 
The  lessee  of  a  theatre  was  de- 
scribed as  "M.  G.,  representing 
Messrs.  C.  A.  C.  &  Co.,  manager 
of  the  A.  0.  B.  Co.,"  and  the 
contract  stated  that  he,  Grau, 
was  to  have  the  i)rivilege  of  giv- 
ing a  certain  number  of  per- 
formances. One  of  the  clauses 
provided:  "The  said  Maurice 
Grau,  in  consideration  of  the 
above,  agrees  to  pay  to  the  said 
McVicker."  Held  that  M.  G. 
was  liable^  as  principal  and  that 
the  words  added  to  his  name 
were  merely  words  of  description. 

B.  F.  Siurlevanl  Co.  v.  Fireproof 



Where  the  phiintifT  had  contracted  as  "The  Redpath 
Lyceum  Bureau"  but  brought  suit  in  the  name  of  Geo.  H. 
Hathaway,  the  real  party  in  interest,  it  was  held  that  he 
could  pr()])(>rly  do  so.-^^ 

Section  69. — Costumes. 

While  stock  costumes  for  the  company  are  usually 
rented,  in  more  elaborate  productions  of  ])lays  and  motion 

Film  Co.  (1915),  216  N.  Y.  199; 
110  N.  E.  440.  "When  an  offer, 
proposal  or  contract  is  expressed 
in  dear  and  explicit  terms,  mat- 
ter printed  in  small  type  at  the 
top  or  bottom  of  the  office  sta- 
tionery of  the  writer  where  it 
is  not  easily  seen,  which  is  not 
in  the  body  of  the  instrument  or 
referred  to  therein,  is  not  neces- 
sarily to  be  considered  a  part 
of  such  offer,  proposal  or  con- 

Cobb  V.  Knapp  (1877),  71  N.  Y. 
348.  "There  is  no  hardship  in 
the  rule  of  liability  against  agents. 
They  always  have  it  in  their  own 
power  to  relieve  themselves,  and 
when  they  do  not,  it  must  be 
presumed  that  they  intend  to 
be  lial)le." 

Meyer  v.  Redmiutd  (1912),  205 
N.  Y.  478;  98  N.  E.  906.  De- 
fendants were  auctioneers,  acting 
ami  presumably  known  to  be 
ueting  as  agents.     Vet  the  court 

held  that:  "Even  where  he  di.s- 
closes  the  name  of  his  principal, 
if  he  (the  agent)  signs  a  written 
contract  in  his  own  name  merely, 
which  contract  does  not  show 
upon  its  face  that  he  was  acting 
as  the  agent  of  another,  or  in 
an  official  capacity  in  behalf  of 
the  Government,  he  will  be  per- 
sonally bound  thereby." 

^^^  Hathaway  v.  Sabin  (1889), 
61  Vt.  60S;  18  Atl.  188. 

See  also:  Stuart  v.  Smith  (1895), 
68  Fed.  (C.  C.)  189.  Where  an 
officer  of  a  corporation  was  held 
not  liable  for  the  acts  of  the  cor- 
porati«jn  when  done  without  his 
consent;  and  McDonald  v.  Hearst 
(1899),  95  Fed.  (C.  C.)  656. 

On  the  question  whether  the  pro- 
prietor of  a  theatre  is  liable  for  the 
act  of  his  manager  in  refimng  to 
permit  an  officer  to  enter  the  theatre 
to  serve  legal  process  upon  an  actor 
see:  Paulton  v.  Keith  (1901),  23 
R.  I.  164;  49  Atl.  635. 


pictures,  these  costumes  must  be  made  up  specially.  It 
is  the  custom  to  have  plates  prepared  by  the  designer  of 
the  costumes,  and  these  plates  are  furnished  to  the  cos- 

In  a  case  where  the  costumer,  an  Enghsh  resident,  had 
himself  prepared  and  designed  the  plates  for  costumes 
to  be  used  in  the  defendant's  production,  it  was  held  that 
he  had  fully  performed,  and  judgment  in  his  favor  was 

Section  70. — Enticement  of  actor. 

Because  of  the  great  competition  existing  between 
producers  to  secure  the  services  in  the  making  of  motion 
pictures  of  actors  and  actresses  of  established  reputation, 
one  motion  picture  producer  frequently  will  attempt  to 
secure  the  services  of  an  actor  who  has  contracted  to  per- 
form vdih  his  competitor.  It  is  important  for  him  to 
know  how  far  he  may  go  in  inducing  the  artist  to  leave  his 
competitor's  employ  without  committing  an  actionable 

His  competitor  may  have  expended  large  sums  of 
money  and  assumed  obUgations  in  reUance  upon  liis 
contract  with  the  actor. 

It  has  been  generally  held  in  this  country  that  where 
the  breach  is  induced  solely  by  argument  and  persuasion 
and  no  false  representation  is  made,  the  producer  whose 
contract  has  been  breached,  has  no  remedy  against  his 

2"  Anderson  v.  Lang  (1914),  56  former  w:i.s  coniinissioned  to  draw 

Pa.  Sup.  Ct.  183.    Phiintiff  wa,s  u  |)hites   for   designs    of    costumes, 

dosij^nor   of   theatrical    costumes  Held  that  lie  liad  fully  performed 

and  defendant  a  playwright.    The  and  was  entitled  to  recover. 


competitor.  He  is  left  to  liis  remedy  against  the  actor 
for  damages  for  the  breach  of  the  contract. 

If  the  actor,  however,  has  been  induced  to  breach  liis 
contract  by  false  representations,  by  fraud  or  by  force 
or  coercion,  the  competitor  has  committed  a  wrong  for 
which  he  is  accountal)lc  to  the  producer.  The  motive  of 
the  person  enticing  tlie  servant  away  is  inmiaterial. 

The  law  is  stated  in  a  recent  case  as  follows: 

"The  gist  of  the  WTong  lies  in  overpowering  or  circum- 
venting the  freedom  of  will  and  the  intent  of  the  one 
obligated  to  perform  as  distinguished  from  procuring 
him  by  fair  means  to  elect  not  to  perform." 

The  wronged  party  may  in  any  case  where  the  contract 
has  been  breached  by  false  representations,  fraud,  force 
or  coercion,  maintain  an  action  at  law  against  the  \\Tong- 
doer  for  his  damages. 

Wliere  the  services  of  the  artist  are  unique  and  extraor- 
dinary and  the  producer's  damages  irrcparal)le  the  courts 
have  gone  one  step  fm-tlier  and  permitted  liim  to  go  into 
equity  to  enjoin,  not  only  the  actor,  but  the  wrongdoer 
as  well  and  jirevent  such  wTongdoer  from  availing  himself 
of  the  services  of  the  actor. 

It  seems  that  there  are  only  three  cases  reported  in 
this  country  where  one,  contracting  with  an  actor,  has 
brought  an  action  against  a  thu'd  party  for  entice- 

One  action  was  brought  at  law.  The  defendant  induced 
an  actor  who  had  contracted  to  perform  at  plaintiff's 
theatre  to  breach  the  contract  and  to  perform  at  defend- 
ant's theatre  upon  the  days  he  had  agreed  to  act  at 
plaintifT's  theatre.     The  court  held  that  the  motives  of 


defendant  in  inducing  the  actor  to  breach  his  contract 
were  immaterial  so  long  as  the  means  used  by  him  in 
inducing  the  breach  were  legal,  and  plaintiff  had  no  cause 
of  action  against  defendant. -^^ 

The  other  two  actions  were  brought  in  equity.  In 
Jesse  L.  Lasky  Feature  Play  Co.  v.  Fox  the  complaint 
alleged  that  plaintiffs  had  made  a  contract  with  an  actress 
of  unique  and  extraordinary  ability  whereby  she  had 
agreed  to  pose  for  plaintiffs  in  the  making  of  motion 
pictures  for  a  specified  period;  that  defendant  by  making 
false  representations  had  induced  her  to  breach  the  con- 
tract; that  the  false  representations  consisted  of  state- 
ments to  her  that  the  contract  between  plaintiffs  and  her 
was  void,  that  plaintiffs  had  no  intention  of  furnishing 
her  with  employment  as  provided  for  in  the  contract, 
that  plaintiffs  had  violated  the  agreement  in  failing  to 
make  the  necessary  preparations  for  posing  and  that  she 
was  under  no  obligation  to  perform  the  agreement.  The 
contract  contained  a  negative  covenant.  The  defendant, 
who  was  a  business  rival  of  plaintiffs,  had  caused  the 
actress  to  pose  for  a  motion  picture  subsequent  to  the 
making  of  the  above  mentioned  agreement  and  prior  to 
its  termination;  and  the  relief  asked  for  was,  among  other 
things,  f(^r  an  injunction  restraining  defendant  from  ex- 
hibiting the  photo-play  for  which  the  actress  had  posed. 

2"  Bourlier  Bros.  v.  Macauley  involves  legal  recognition  of  per- 

(1891),  91  Ky.  135;  15  S.  W.  60.  sonal    doiiiitiiun,    bordering    on 

"...  For,  to  enforce  u  doctrine  pure  servitqde,  wliicli  is  neitlier 

making  the  hirer  respf)nsible  for  in   harmony    witli    our    form    of 

breach  by  the  person  hired  of  a  government   nor   well    for    those 

previou.s   contract   witli    another  who  labor  for  .subsistence.    ..." 


The  dcfondant's  demurrer  to  the  bill  of  complaint  was 

The  latest  decision  is  that  of  Triangle  Film  Corporation 
V.  Artcraft  Piclurcs  Corporation  wherein  plaintiff  sought 
to  enjoin  the  defendant  from  employing  one  Hart  as  one 
of  its  motion  ])icture  actors. 

Hart  had  entered  into  a  contract  with  the  plaintiff  in 
which  he  agreed  to  render  to  it  his  exclusive  ser\'ices  as 
a  motion  jiicture  actor  for  a  number  of  years.  The  con- 
tract provided  that  one  Ince  was  to  supervise  all  the 
productions  made  with  the  participation  of  Hart.  It 
appeared  that  Ince  had  left  plaintiff's  employ  and  at  the 
time  of  the  commencement  of  this  action  was  associated 
with  the  defendant.  Hart  refused  to  remain  in  plaintiff's 
employ  after  the  withdrawal  of  Ince  and  had  accepted 
employment  from  the  defendant. 

The  theory  of  the  action  was  that  the  defendant  had 
combined  with  Ince  to  induce  Hart  to  leave  plaintiff's 
emi)loy  by  means  of  false  representations,  and  to  enter 
into  its  own  employ. 

Judge  Manton  denied  the  application  for  an  mjunction 
pendente  lite  upon  the  ground  that  Hart  was  not  obligated 
to  perform  under  his  contract  since  the  condition  of  his 
employment  was  that  Ince  should  act  as  director-general 

"8  L.  Lasky  Feature  Play  in  the  case  of  other  contracts  the 

V.  Fox  (191G),  9.3  Misc.  (X.  Y.)  i)!irties  to   which   have  assumed 

364;  157  N.  Y.  Supp.  KX).     "In  mutual  obhgations.     For  induc- 

this  jurisdiction  interference  by  ing    the    termination    or    other 

a   stranger   with    a    contract    of  breach     of    such    a    contract    a 

service  by  any  of  employes  third   party  is  liable  only  when 

gives  rise  only  to  such  romcdii^s  he   has  been  guilty  of  unlawful 

as  exist  under  Uke  circumstances  means." 



of  all  pictures  to  be  made  with  his  participation;  and  that 
since  no  action  could  be  maintained  against  Hart,  none 
could  be  maintained  against  the  defendant. -^^ 

Section  71. — Libel  of  actor. 

Members  of  the  theatrical  profession  will  be  permitted 
to  maintain  actions  for  libel  where  the  criticisms  of  their 
performances  are  instigated  through  mahce,  or  where  the 
critic  in  his  zeal  has  made  statements  which  are  untrue. 

Where  statements  were  made  concerning  a  public 
singer  that  he  falsely  claimed  to  be  the  owner  of  certain 
songs,  and  that  he  procured  the  giving  of  applause,  the 
court  held  the  defendant  guilty  of  a  libel. -^^ 

2"  Triangle  Film  Corp.  v.  Art- 
crafl  (1917),  D.  C.  U.  S.,  S.  D., 
N.  Y.,  July  31st.  "  If  Hart  could 
not  be  held  for  breach  of  contract, 
how  can  this  defendant  be  held 
for  inducing  Hart  to  break  his 

For  the  first  English  case  on 
this  subject  where  the  services  of 
an  actor  were  involved,  see:  Lumley 
V.  Gye  (Eng.)  (1853),  2  E.  &  B. 
216.  See  also:  Allen  v.  Flood 
(Eng.),  67  L.  J.  Q.  B.  112. 

And  for  more  recent  miscel- 
laneous ca,ses  in  enticement,  sec: 
Rogers  v.  Evarts  (I89I),  17  N.  Y. 
Supp.  261;  Johnston  Harvester 
Co.  V.  Mcinhnrdt  flSSO),  0  Abb.,  393;  IhJontf  v.  Behrman 
(1911),  148  A.  D.  (N.  Y.)  37; 
131    N.   Y.   Supp.   1083;   I'osner 

Co.  V.  Jackson  (1915),  166  A.  D. 
(N.  Y.)  920;  152  N.  Y.*  Supp. 
1105;  Angle  v.  Chicago  &  St.  Paul 
Rij.  Co.  (1893),  151  U.  S.  1;  U 
Sup.  Ct.  210;  Dr.  Miles  Medical 
Co.  V.  Park  &  Sons  (1911),  220 
U.  S.  373;  31  Sup.  Ct.  370. 

For  some  of  the  earlier  entice- 
ment cases  not  involving  the  ser- 
vices of  an  actor  see:  Benton  v. 
Pratt  (1829),  2  Wend.  {N.  Y.) 
3S6;  Walker  v.  Crown  (1871),  107 
Mass.  555;  Ashley  v.  Dixon 
(1872),  48  N.  Y.  430;  Boston 
Glass  Mfg.  v.  B i nncy -  ilS27),  4 
Pick.  (Mass.)  425;  Ncioman  v. 
Zacharij  (Eiit!;.)  (H)4(»),  Aleyn,  3; 
Hart  V.  Aldridge  (Eng.)  (1774), 
Cowp.  54;  Gunter  v.  Astor  (Eng.) 
(181 9),  4. J.  n.  Moore,  12. 

*'"  Dibdin     v.     'Swan     (Eng.) 



In  another  case  \vlieie  the  performances  of  a  troupe  of 
j)ul)Hc  performers  were  referred  to  as  being  coarse,  farcical, 
wholly  without  merit  and  ridiculous,  it  was  held  that 
unless  malice  was  estal)lishcd  there  could  be  no  recovery.-^' 
A  reference  to  the  manners  of  an  actor  as  "ungentlemanly 
and  discourteous"  was  however  held  actionable. -'- 

As  the  reputation  of  an  actor  is  (l(>pendent  to  a  groat 
extent  upon  the  nature  of  the  pul)licity  given  to  him, 
improper  forms  of  advertisement  or  type  will  sustain  a 
cause  of  action  for  libel.  Thus  where  a  high  class  actor's 
name  was  billed  in  very  small  type  whereas  he  was  ac- 
customed  to  having  it  starred,   the  courts  permitted  a 

(1793),  1  Esp.  28.  "The  editor 
of  a  newspaper  may  fairly  and 
candidly  comment  on  any  place 
or  species  of  public  entertain- 
ment; but  it  must  be  done  fairly 
and  without  malice  or  view  to 
injure  or  prejudice  the  proprietor 
in  tlie  eyes  of  the  public.  If  so 
done,  liowever  severe  the  censure, 
the  justice  of  it  screens  tlie 
ochtor  from  legal  animadversion; 
but  if  it  can  be  proved  that  the 
comment  is  malevolent,  or  ex- 
ceeding the  bounils  of  fair  opinion 
then  such  is  a  libel  and  therefore 

To  the  same  effect:  Hart  v. 
Wall  (Eng.)  (1S77),  25  W.  H. 
373.  8ee  also:  (irccn  v.  Chapman 
(Kng.)  (1837),  4  Bing.  N.  C.  92; 
Morrison  v.  Iklchcr  (Eng.),  3 
F.  &  V.  (ill. 

■*^  Cherry  ct  al.  v.  Des  Moines 
Leader  (1901),  114  Iowa,  298;  86 
N.  W.  323. 

McQuire  v.  Western  Xews 
(Eng.)  (1903),  88  L.  T.  7.57.  Re- 
ferring to  certain  songs  delivered 
during  the  performance  of  a  play 
and  to  certain  dancing  therein 
a.s  "vulgar"  was  not  lield  to  be 
lil)elous.  See  also:  Thomas  v. 
Bradbury  (Eng.)  (190C),  95  L.  T. 
23;  Unwin  v.  Clarke  (Eng.) 
(190S),  Times,  March  31 ;  Murray 
V.  Walter  (Eng.)  (1908),  Times. 
May  6,  7,  8,  9. 

See  also:  Wood  v.  Sandow 
(Eng.)  (1914),Times,June2G,  30. 
The  pulilication  of  an  actor's 
picture  in  connection  with  an 
advertisement  is  not  ijjso  facto 

"'  Williams        v.        Davenport 


recovery;  ^^s  and  where  the  singer's  name  was  placed  third 
on  the  Ust  of  concert  singers  printed  on  the  handbills 
and  advertising,  the  court  held  that  that  was  calculated  to 
injure  the  plaintiff's  reputation  and  constituted  a  Hbel.^'*^ 
On  the  other  hand,  to  accuse  an  actress  of  being  in 
the  company  of  a  man  late  at  night  and  being  mixed  up 
in  a  quarrel  was  held  not  libelous  in  the  absence  of  special 
damage. -^^ 

(1890),  42  Minn.  393;  44  N.  W.  Renard  v.  Carl  Rosa  Opera  Co. 

311.  (Eng.)    (1906),  Times,  Feb.    15; 

^''Elen  V.  London  Music  Hall  Wade  v.   Waldon  (Eng.)    (1909), 

(Eng.)    (1906),  Times,  May  31,  S.  C.  571. 
June  1.  ^^^  Gerald  v.  Inter  Ocean  Pub. 

^'*  Russell    V.    Notcutt    (Eng.)  Co.  (1899),  90  111.  App.  205. 
(1896),  12  T.  L.  R.  195.    See  also: 



His  Other  Employes 

Sec.  72.  Scenario  writer. 

73.  Director  and  other  employes. 

Section  72. — Scenario  writer. 

Tlic  professional  scenario  writer  is  a  new  figure;  he  is 
unique  to  the  motion  picture  industry,  and  it  is  rather 
difficult  to  define  with  any  reasonable  degree  of  accuracy 
the  pecuUar  rights  and  liabilities  involved  between  him- 
self, his  employers  and  third  persons. 

We  have  discussed  in  a  previous  chapter  the  scenario 
writer  who  is  employed  to  write  original  motion  pictures, 
and  the  author  who  writes  original  scenarios  and  sends 
them  in  for  sale,  confining  ourselves  principally  to  the 
rights  retained  or  transfernnl  in  the  scenario.^  But  it  is 
becoming  customary  for  th(^  film  producers  to  employ 
scenario  writers  whose  princijial  function  it  is  to  adapt 
novels,  plays  and  other  works  which  have  come  into  their 
control  for  representation  in  motion  pictures. 

Such  a  scenario  writer  has  no  independent  rights  in  the 
scenario,  as  such,  nor  does  he  secure  copyright  in  the 
motion  picture  reproduced  from  that  scenario.     He  is 

'  See  Section  4. 



acting  as  an  intermediary  only,  and  while  he  creates 
something,  that  which  he  creates  belongs  to  his  employer 
and  not  to  him. 

The  above  is  subject  to  one  exception,  however,  for 
should  the  film  producer  multiply  the  scenario  in  copies 
for  sale,  and  should  he,  in  the  process  mutilate  it  to  any 
appreciable  extent,  the  scenario  writer  would  undoubtedly 
have  the  right  to  seek  redress,  as  this  would  be  an  invasion 
of  his  common-law  rights,  which  he  has  not  lost.-  Also, 
where  he  has  so  contracted,  he  may  enforce  the  display 
of  his  name  upon  the  picture  and  billing  matter.^ 

It  must  be  remembered,  however,  that  his  common-law 
rights  are  limited  to  the  scenario  alone. 

It  frequently  happens  that  a  scenario  writer  goes  out  of 
his  way  to  plagiarize  from  another  w8rk  or  picture,  to 
libel  another,  to  invade  a  private  right  or  to  write  that 
which  is  obscene  or  indecent.  In  such  case  the  rule  of 
respondeat  superior  apphes. 

Many  scenario  writers  have  adopted  the  system  of 
doing  independent  work  for  one  or  several  companies. 
They  are  usually  given  a  novel  or  play  and  told  to  turn 
it  into  a  scenario.  Where  the  contract  provides  that  no 
compensation  is  to  be  paid  for  the  scenario  until  the 
picture  is  actually  produced,  the  scenario  writer  may  not 
recover  until  there  is  an  actual  reproduction,  nor  may  he 
compel  such  a  reproduction. 

In  Canada,  it  was  held  in  Moraiig  v.  LcSucur  that  an 
author  who  sold  his  manuscript  to  the  publisher  without 

*  See  Section  12.  August  2r)th,  I\IiilI:in,  J.    Sec  ox- 

'  lircnnan  v.  Fox  Film  dorp.  corpt  from  opinion  under  Section 
(1010),     N.    Y.     Law    Journal,      73. 


any  reservation  as  to  publication,  could  tender  back  the 
advance  royalties,  where  the  publisher  failed  to  publish 
the  work,  and  compel  a  re-assignment  of  the  same.  In 
that  case,  however,  the  author,  under  the  contract,  was 
to  receive  his  remuneration  in  royalties  based  only  upon 
the  actual  retail  sale  of  the  work,  and  this  was  an  element 
that  carried  great  weight  with  the  court  in  arriving  at  its 

The  bench  was  divided,  three  to  two,  and  Judge  .Viiglin 
in  an  elaborate  dissenting  opinion  expressed  the  sounder 
doctrine  that,  unless  the  contract  especially  so  provided, 
the  publisher  was  under  no  obhgation  to  risk  his  money  in 
producing  the  work;  and  while  it  is  true  that  an  author 
sells  his  work  with  an  eye  to  the  enhancement  of  his 
reputation  and  fame  which  publication  would  bring  about, 
he  ought  to  expressly  contract  for  the  pubUcation  of  it, 
if  he  thinks  enough  of  himself  and  his  work.' 

It  would  follow  that  where  a  scenario  writer  sells  liis 
scenario  to  the  motion  picture  producer,   the  latter  is 

*Morang  &  Co.  v.  Le  Siicur  fendant  a  part  in  any  play,  but 
(1911),  45  Canadian  Sup.  Ct.  9.").  paid  him  the  stipuhUcd  salan-. 
See  excerpt  from  dissenting  opin-  The  defendant  becoming  tired 
ion  quoted  in  Section  28.  of  liis  inactivity  obtained  em- 
See  in  this  connection:  Fcchtcr  ployment  at  a  rival  theatre.  In  an 
V.  Montgomery  (Eng.)  (1863),  33  action  for  an  injunction  plaintiff 
Beav.  22,  wliere  an  actor  was  was  defeated,  the  court  hokling 
engaged  for  a  specified  period,  that  one  of  the  objects  of  the 
the  performances  of  tlie  artist  to  contract  was  to  enable  the  de- 
commence  several  weeks  after  fendant  to  appear  in  public; 
the  making  of  the  contract.  that  the  actor  was  paid  not  in 
When  the  time  for  the  j)erfonn-  terms  of  money  alone  but  in  op- 
ance  of  the  contract  aniveil,  the  portunity  to  apjx'ar  in  public,  and 
manager  refused  to  give  the  de-  to  acquire  reputation  and  fame. 


under  no  obligation  to  make  a  production  of  the  picture, 
unless  the  contract  especially  covenants  him  to  do  so. 

If  the  acceptance  of  the  work  is  contingent  upon  the 
satisfaction  of  the  producer,  the  latter  may  reject  the 
scenario  for  any  cause  he  sees  fit.^ 

Where  the  scenario  writer  leaves  the  employ  of  his 
company,  he  may  subsequently  make  use  of  any  and  all 
ideas  which  he  may  have  acquired  in  the  course  of  his 
employment.  He  may  even  go  to  the  same  sources  for 
information  and  ideas  which  he  had  made  use  of  while 
so  employed,  and  he  may  later  develop  them  in  any  way 
that  he  sees  fit — provided  that  such  sources  are  not  the 
property  of  his  former  employers.^ 

But  where  the  scenario  writer  has  reduced  to  wTiting 
while  in  such  employment,  any  ideas  whatsoever,  whether 
the  material  has  been  developed  in  the  form  of  scenario 
or  not,  such  WTitings,  whether  complete  or  in  unfinished 
narrative  form,  are  the  absolute  property  of  liis  former 

The  writer  is  engaged  specifically  to  write  this  kind  of 
material,  and  it  is  well  settled  that  as  soon  as  the  material 

^Glenny  v.  Lacy  (1888),  1  For  additional  cases,  see  Sec- 
N.  Y.  Supp.  513;  Crawford  v.  tions  16  and  38. 
Mail  &  Express  Pub.  Co.  {1900),  <>  Peters  v.  Borst  (1889),  9 
163  N.  Y.  404;  57  N.  E.  616;  N.  Y.  Supp.  789;  reversed  142 
Peverly  v.  Poole  (1887),  19  Abb.  N.  Y.  62;  .36  N.  E.  814;  upon 
N.  Cas.  (N.  Y.)  271;  Kendall  v.  another  ground:  Colliery  En- 
West  (1902),  196  111.  221;  63  gineer  Co.  v.  United  Corresp. 
N.  E.  683;. Saxc  v.. S/!?i6cr/ (1908),  Schools  (1899),  94  Fed.  (C.  C.) 
57  Misc.  (N.  Y.)  620;  108  N.  Y.  152. 

Supp.  683;  Weaver  v.  Klaw  (1891),  '  T.  H.  Harms  v.  Stern  (1915), 

16  N.  Y.  Supp.  931.  222  Fed.  (D.  C.)  581. 


comes  into  cxistenco,  and  takes  concrete,  tan^i'^le  form, 
it  becomes  the  property  of  the  one  who  lias  paid  him  for 
such  work.  If  be  attempts  to  use  the  sanie  tliereafter, 
he  is  as  nmch  of  an  infringer  as  a  stranger,  and  he  may 
be  restrained  and  punished.** 

Section  73. — Director  and  other  employes. 

Directors,  camera  men  and  other  employes  of  film 
companies  are  amenable  to  the  general  rules  governing 
master  and  servant.  Directors  in  particular  have  been 
recognized,  like  competent  actors,  as  being  artists  pos- 
sessing in  greater  or  lesser  degree  the  attributes  of  skill, 
taste  and  judgment,  and  as  such  their  rights  and  duties 
must  be  defined  in  accordance  with  the  rules  heretofore 
set  out  for  special,  unique  and  extraordinary  employes. 

For  example,  a  skillful  director  who  has  contracted  for 
a  definite  period  for  his  services,  jiiay  not  arbitrarily 
breach  his  contract;  if  he  does  so,  he  may  be  restrained. 

He  is,  for  many  purposes,  the  agent  of  the  company. 
Where  he  supervises  or  directs  the  production  of  a  libelous 
picture  he  becomes  personally  liable  as  a  joint  tort  feasor 
with  his  employer.^  Even  though  the  motion  picture 
producer  has  no  actual  knowledge  of  the  libel,  his  failure 
to  control  his  agent  would  be  eciuivalent  to  such  dis- 
regard of  the  rights  of  others  as  to  amount  to  intentional 

« See  Section  8.  Weil  v.   Xcrin,  1   Pa.   Sup.  Ct. 

^  Spooner  v.  Daniels  (1854),  22  Cixa.  03;  Kcyzor  v.  Nacman  (Eng.), 

Fed.  Cas.   (C.  C.)   No.   13,214a;  1  F.  &  F.  559;  Mecabe  v.  Jones 

Walts   V.    Fraser    (Eng.)    (is;i7),  (1S81),    10   Daly    (X.   Y.),   222; 

7  C.  &  P.  360;  Hunt  v.  Iknnell  Smith  v.    Ulley   (1890),  02  Wis. 

(1859),  10  X.  Y.   173;  Bruce  v.  133;  65  X.  W.  744. 
Reed   (1883),    101    Pa.    St.    40S; 



wrong.  ^°  And  such  liability  would  seem  to  be  criminal 
as  well  as  civil.  ^^ 

And  where  a  director  has  placed  an  actor  in  a  dangerous 
part  wherein  he  sustains  injury  he  is  the  alter  ego  of  the 
employer  in  the  same  manner  as  the  foreman  or  superin- 
tendent of  a  shop.  The  rule  appUes  as  well  to  acts  of 
omission  as  to  acts  of  commission. 

He  is  ordinarily  vested  with  the  right  to  employ  and 
discharge  actors  and  other  employes.  But  he  has  no 
inherent  authority  to  engage  an  actor  for  a  year  and 
thereby  bind  the  company.  ^^ 

He  is  entitled  to  a  reasonable  amount  of  publicity  where 
he  has  contracted  therefor,  and  in  that  event  may  insist 
that  the  display  advertising  and  billing  matter  have  his 
name  printed  thereon. ^^    Where  his  name  is  so  advertised, 

'"  Danville  Press  v.  »Harnson 
(1901),  99  III.  App.  244. 

^^  Slate  V.  Mason  (1894),  26 
Oregon,  273;  38  Pac.  130;  Ickes  v. 
Stale  (1898),  8  Ohio  Circ.  Dec. 
442;  Com.  v.  Kneeland  (1834), 
Thach.  Crim.  Cas.  (Mass.)  34G; 
aff'd  20  Pick.  200;  Clay  v.  People 
(1877),  80  111.  147. 

1-  Vogel  V.  Si.  Louis  Museum 
(18S0),8Mo.  App.  587. 

»'  Drenan  v.  Fox  Film  Corp. 
(1910),  N.  Y.  Law  Journal, 
Aug.  25.  "The  plaintiff  who  i.s 
the  author  of  a  j)hotoplay  known 
a.s  'The  Daughter  of  the  Gods' 
scok.s  to  enjoin  the  exhibition  of 
it  by  the  defendant  without  an 

accompanying  ascription  to  him 
of  the  authorship,  and  without 
giving  prominent  publicity,  in 
the  various  ways  customarily 
employed  in  the  motion  picture 
business  to  advertise  photopla3's, 
to  the  fact  that  the  plaintifT  'is 
the  originator,  author  and  pro- 
ducing director  of  such  photo- 
play.' The  plaintifT  was  em- 
ployed by  the  defendant  in 
January,  1915,  at  a  weekly  salary 
to  write  for  it  scenarios  and  direct 
the  production  of  motion  picture 
or  photoplaj's.  The  engagement 
was  oral,  for  no  definite  period, 
and  contained  no  provision  to 
insure  to  the  plaintilT  the  pub- 



licity  fi)r  liimsclf,  upon  the  im- 
portance of  which  he  lays  such 
stress  in  his  coinphiint  and  in 
his  moviiiK  papers  upon  this 
apphcation,  althoup;h  he  states 
that  shortly  before  entering  the 
einph)y  of  the  defendant  he 
severed  liis  c(jiuioc(ion  with  per- 
sons conducting  a  similar  busi- 
ness for  the  reason  that  they 
denied  to  liiin  the  puljHcity  ho 
felt  he  was  entitled  to.  In  July 
of  this  year  the  plaintilT  volun- 
tarily severed  his  connection 
with  the  defendant  by  resigna- 
tion. Although  I  have  no  dis- 
position to  pass  upon  the  merits 
of  the  dispute  in  advance  of  the 
trial,  which  presumably  will  bring 
out  the  true  and  full  situation, 
I  think  it  is  at  least  doubtful 
whether  any  engagement  that 
may  possibly  be  spelt  out  by 
defendant's  conduct  and  the  cu.s- 
tom  of  the  business  to  advertise 
plaintiff's  connection  with  the 
plays  he  wrote  and  produced 
while  in  the  defendant's  employ 
may  hold  good  and  continue 
after  a  severance  of  the  relation 
of  employe  and  employer.  If  the 
defendant  were  to  be  bound  for 
all  time  to  advertise  the  plaintilT 
in  connection  with  the  plays  he 
wrote  while  in  the  pay  of  the  de- 
fendant, it  is  more  than  strange 
that     the     plaintilT    should     not 

have  miwJe  such  advertisement 
an  express  condition  of  the  em- 
ployment, and  procured  the  pro- 
tection of  a  written  instrument, 
particularly  when,  as  he  says,  he 
left  his  former  employer  for  the 
sole  reason  that  he  was  not 
sufficiently  advertised.  Many 
grounds  of  opj)osition  are  urged 
by  the  defendant,  among  them, 
that  even  if  it  should  be  thought 
from  a  reading  of  the  papers 
submitted  upon  this  motion,  that 
the  i)laintifT  may  have  contrac- 
tual rights  for  the  breach  of 
which  he  should  be  entitled  to 
suitable  redress,  it  would  be  im- 
possible in  such  a  as  this 
for  a  court  of  equity  suitably 
and  appropriately  to  exercise  its 
powers.  While  the  proper  en- 
forcement in  equity  of  the  plain- 
tiff's rights,  if  it  be  ultimately 
decided  that  he  has  any, 
may  present  certain  difficul- 
ties, I  am  not  prepared  to  say 
that  an  appropriate  scheme  of 
relief  could  not  be  worked  out; 
but  it  is  not  ncce.«;sary  for  me  to  upon  that  question.  I  rest 
my  decision  upon  the  belief  that 
the  ultimate  success  of  the  plain- 
tilT is  too  doubtful  to  warrant  a 
mandatory  injunction  which  may 
give  to  the  plaintilT  in  advance  of 
the  trial  a  considerable  meivsure 
of  the  relief  he  might  be  entitled 



but  he  has  not  directed  the  picture,  he  may  enjoin  such 
use  of  his  name.^^  Where  he  has  directed  a  picture,  and 
the  producer  or  distributor  places  another  name  thereon, 
he  may  restrain  the  production.  ^^ 

The  director,  being  responsible  to  his  employer  for  the 
proper  filming  of  the  picture,  is  given  wide  discretionary 
powers.  He  may  alter  the  sequence  of  the  taking  of 
scenes;  he  may  make  changes  in  the  scenario,  eliminate 
scenes,  change  about  the  cast  and  in  general,  supervise 
and  conduct  the  production  to  meet  with  his  individual 
notion,  taste  and  judgment. 

The  director  cannot  be  delegated  by  the  producer  to  do 
other  work,  and  his  refusal  to  perform  work  other  than 

to  upon  making  out  his  case 
before  the  trial  court.  As  the 
condition  of  the  calendar  is  such 
that  a  trial  may  be  had  speedily, 
the  risk  of  damage  to  the  plaintiff 
is  not  in  my  judgment  sufficient 
to  require  what  would  in  effect 
be  a  determination  in  his  favor 
prior  to  the  taking  of  proofs. 
Motion  denied." 

'■'  The  "Mark  Twain"  Case 
(1883),  14  Fed.  (C.  C.).728.  "So, 
too,  an  author  of  acquired  reputa- 
tion, and  perhaps  a  person  who 
has  not  obtained  any  standing 
before  the  public  as  a  writer,  may 
restrain  another  from  the  iMil)lica- 
tion  of  literary  matter  purporting 
to  have  been  written  by  him, 
but  which  in  fact  was  never  so 
written.      In    other    words,    no 

person  has  the  right  to  hold  an- 
other out  to  the  world  as  the 
author  of  literary  matter  which 
he  never  wrote." 

Drummond  v.  Altemus  (1894), 
60  Fed.  (C.  C.)  338.  Here  de- 
fendant published  what  pur- 
ported to  be  a  series  of  lectures 
delivered  by  the  plaintiff  en- 
titled: "The  Evolution  of  Man; 
being  the  Lowell  lectures  de- 
livered at  lioston,  Mass.,  April, 
1893,  by  Professor  Drummond." 
The  court  restrained  iiim.  See 
also  Section  12. 

''' DcHvkker  v.  Stakes  (1015), 
108  A.  D.  (N.  Y.)  4r)2;  153  N.  Y. 
Supp.  lOfiC);  Croaks  v.  Pctler 
(Kug.)  (1800),  3  L.  T.  Rep. 
(N.  S.)  225.  See  also  Section 

DIRECTOR   AN'I)    OTHKR    i:.MFrX)YES  213 

such  within  the  scope  of  his  employment  is  not  grounds 
for  discharge.'^ 

He,  as  well  as  all  the  other  employes  of  the  producer 
will  be  restrained  from  disclosing  the  trade  secrets  of 
their  employer  to  a  rival,  in  the  same  manner  and  under 
the  same  conditions  as  in  other  commercial  pursuits.'^ 

'•  A^a.s7i   \-.  K riding  (189fl),  56  courts  on  this  subject  see:  DuPont 

Pac.    200;   afT'd    123   Cal.    xviii.  Powder  Co.    v.    Mnsland   (1917), 

F(ir    additional    cases    see:    Sec-  244  U.  S.  100;  Todd  Prolectogrnph 

tion  45.  Co.    V.     Hirf^chberg    (1917),    luO 

"  For  the  latest  expression  of  the  Misc.  (N.  Y.)  418. 



Sec.  74.  Distributor— in  general. 

75.  Exhibitor — in  general. 

76.  Advertising  matter,  programs,  bill-posters. 

77.  What  are  fixtures. 

78.  Replevin  of  film  and  machine. 

79.  Theatre  leases. 

80.  Theatre  a  nuisance. 

81.  Franchise  and  booking  agreements. 

82.  Benefit  performances — private  exliibitions. 

83.  Interstate  commerce. 

84.  Bankruptcy. 

85.  Libel. 

Section  74. — Distributor — in  general. 

It  has  become  a  practice  in  the  motion  pictm-e  industry 
to  have  separate  organizations  take  care  of  the  manufac- 
ture and  distribution  of  the  motion  picture.  A  number 
of  the  concerns  manufacturing  the  fihns  turn  o\'er  the 
finished  product  to  a  distributing  agency.  The  distribut- 
ing agency  is  usually  the  main  organization,  the  manu- 
facturing companies  being  subsidiaries  of  the  releasing  or 
distributing  company.  The  distributing  company  main- 
tains branches  in  the  principal  cities  of  the  country,  known 
in  the  trade  as  "exchanges"  tlirongli  wliich  ilio  motion 
pictures  are  rented  out  to  the  individual  ('xhibitors. 

One  of  two  methods  is  usually  followed  by  the  dis- 


tributor  to  compensate  the  manufacturer  for  the  fihris. 
In  the  one  case  the  negative  of  the  film  is  sold  outright 
to  the  distributor  for  a  lump  sum,  usually  amounting  to 
the  actual  cost  of  production,  and  positive  prints  of  the  film 
are  sold  at  a  specified  ainomit  per  foot;  the  other  method 
is  to  have  the  producer  lease  the  positive  prints  of  the  film 
to  the  releasing  agency,  the  gross  receipts  being  divided 
between  the  two  u})on  a  fixed  percentage  basis.  The 
former  method  was  the  one  first  adopted  in  the  industry, 
but  the  latter  has  become  more  popular  in  the  past  few 
years  and  will  undoubtedly  ultimately  supplant  the  older 
method  entirely. 

That  is  true  especially  because  of  the  growing  custom 
of  forming  manufacturing  organizations  to  make  the  pic- 
tures of  a  single  star  and  giving  him  a  part  of  the  capital 
stock  of  the  company.  The  star,  being  a  stockholder,  will 
turn  the  films  over  to  a  releasing  company,  only  upon 
condition  that  a  share  of  the  receipts  are  returned  to  the 
company.  In  this  manner  a  profit  is  derived  from  the 
exploitation  of  the  film,  from  which  the  star  receives  a 
share  on  account  of  his  stock  holdings. 

Litigation  between  the  producer  and  the  releasor  is 
infrcciuent.  Their  interests  are,  as  a  rule,  closely  allied 
and,  as  the  control  of  each  one  is  in  the  same  group  of  men, 
all  disputes  between  them  are  usually  settled  intra  mura. 
Occasionally,  disputes  arise  which  reach  the  courts,  and 
the  questions  which  come  up  are  complicated  and  diflicult 
of  adjustment. 

In  the  case  of  GoJdburg  v.  Popular  Pictures  Corporation 
the  producer,  under  his  contract  with  the  distributor, 
made  for  and  tendered  to  it  a  negative  of  a  film.    Under 


the  contract  the  producer  was  to  receive  a  sum  equal  to 
the  actual  cost  of  the  manufacture  of  the  negative  plus  a 
percentage  of  the  gross  receipts  when  the  film  was  re- 
leased. The  distributor  failed  to  accept  or  pay  for  the 
film,  and  when  suit  was  brought,  the  court  was  at  a  loss 
to  understand  whether  the  action  was  upon  a  lease,  a 
sale,  or  a  joint  venture. 

After  a  careful  array  of  the  facts,  Judge  Greenbaum 
decided  that  the  complaint  should  be  based  upon  a 
breach  of  contract.  Thp  measure  of  damages  would  be 
solely  the  actual  cost  of  producing  the  picture.  The  per- 
centage of  the  gross  receipts  was  entirely  too  speculative, 
as  the  picture  had  not  been  exhibited  by  the  defendant 
Popular  Pictures  Corporation,  and  plaintiff  was  directed 
to  amend  his  complaint  accordingly.^ 

^Goldberg  v.  Popular  Pictures  It  lacks,  however,  all  the  essential 
Corp.  (1917),  N.  Y.  Law  Journal,  features  of  any  of  these  transac- 
April20.  Greenbaum,  J.:  "The  tions.  It  is  not  a  sale,  because 
subject-matter  of  the  contracts  the  title  in  the  production  is  re- 
upon  which  the  defendants  are  served  in  the  plaintiffs,  the  de- 
sought  to  be  held  is  the  produc-  fendant  having  merely  the  right 
tion  by  the  plaintiffs  of  a  feature  to  rent,  exhibit  or  otherwise  use 
motion  picture  to  consist  of  not  the  films  produced  by  the  plain- 
less  than  4,500  feet,  to  be  de-  tiffs.  It  is  not  altogether  a  lease, 
livered  on  or  before  a  fixed  date  because  it  is  in(l(>(inito  as  to  the 
to  the  defendants  Popular  Pic-  terms  of  duration,  and  it  obli- 
tures  Corporation,  who  will  be  gates  the  defendant  the  Popular 
referred  to  as  'the  defendant.'  Pictures  Corporation  to  the  per- 
The  legal  obligations  flowing  formance  of  {-(M-taiii  active  duties 
from  the  contracts  are  of  a  some-  or  obligations  in  handling  the 
what  composite  nature,  embody-  production.  The  total  amount 
ing  those  that  arc  pecnliar  to  a  of  what  may  be  termed  the 
sale,  a  lease  and  a  j(jint  venture.  'rentals'  to  be  paid  to  the  plain- 



After  the  anientlinent  of  the  coinphiint  the  defendants 
interposed  answers  in  which  they  set   up  as  a  partial 

tiffs  is  dependent  in  fnc-t  upon  the 
gross  receipts  oljtained  by  the 
defendant  from  the  exhibition 
or  use  or  lease  of  the  pictures. 
By  the  terms  of  the  agreement 
the  compensation  or  rental  to  be 
paid  is  an  advance  payment  in  a 
single  sum,  equal  to  the  actual 
cost  to  the  plaintiffs  of  manufac- 
turing the  pictures,  not  exceed- 
ing, however,  the  sum  of  S14,(KX), 
plus  50  iK?r  cent,  of  the  gross 
receipts  obtained  by  the  defend- 
ant in  producing  the  pictures, 
after  the  defendant  shall  have 
first  reimbursed  itself  from  these 
receipts  to  the  extent  of  the  ad- 
vance payment.  Although  the 
contract  embodies  some  of  the 
substantial  features  of  a  joint 
venture,  nothing  is  stated  therein 
which  would  indicate  that  the 
parties  so  regarded  it,  and  upon 
tlie  argument  of  this  motion  no 
suggestion  was  made  by  either 
party  that  it  is  a  joint  venture, 
and,  besides,  it  lacks  the  element 
of  'profits.'  The  result  of  this 
conglomerate  relationship  is  that 
the  learned  counsel  for  the  re- 
spective parties  variously  at- 
tempt to  apply  the  rules  of  law 
ap])licable  to  a  sale  to  a 
It  is  also  claimed  on  the  one 

side  that  the  contract  implies  a 
fi.xed  or  al)Sf)lute  obligation  in 
part  and  the  right  to  uncertain 
damages  in  part.  On  the  other 
hand,  it  is  contended  that  the 
situation  set  forth  in  the  com- 
plaint would  jKTmit  the  plaint itTs 
only  to  [recover)  general  or  spe- 
cial damages,  if  provable,  as  for 
a  breach  of  the  entire  contract. 
Eliminating  the  technical  p<jints 
urged  upon  the  argument  as  to 
whether  the  complaint  sets  forth 
any  cause  of  action,  the  conceded 
facts  apparent  from  the  com- 
plaint and  answers  are  that  the 
plaintiffs  and  the  defendant  Pop- 
ular Pictures  Corporation  en- 
tered into  a  written  agreement, 
annexed  to  the  complaint;  that 
the  plaintiffs  tenderetl  a  negative 
and  films  in  alleged  conformity 
with  the  provisions  of  the  con- 
tract; that  the  defendant  re- 
fused to  accept  them,  and  that 
the  plaintiffs  subsequently  leiused 
the  production  to  third  parties, 
upon  which  considerable  sums 
of  money  have  thus  far  been 
paid  to  the  plaintiffs.  By  the 
contract  the  defendant  agreetl 
to  pay  as  rental,  in  advance,  a 
.sum  not  exceeding  ?14.(XX).  upon 
the  receipt  by  it  of  'the  original 



defense  that  plaintiff  had  received  moneys  from  other 
exhibitors  on  account  of  the  leasing  of  the  film  and  that 
they  should  be  allowed  to  offset  as  against  the  plaintiff's 

negatives  and  a  sample  print 
thereof.'  The  plaintiffs  undoubt- 
edly would  become  entitled,  upon 
an  acceptance  of  the  negative 
and  films,  to  an  absolute  pay- 
ment of  a  sum  representing  the 
actual  cost  expended  by  the 
plaintiffs  in  producing  the  pic- 
ture. Upon  the  defendant's  fail- 
ure or  refusal  to  accept  the  nega- 
tive and  films  the  plaintiffs  had 
the  right  to  retain  them  and  to 
hold  the  defendant  liable  for 
damages  for  the  breach  of  con- 
tract if  its  refusal  to  accept  was 
unjustifiable.  These  damages 
would  be  measured  by  the  actual 
cost  to  the  plaintiffs  of  producing 
the  negatives  and  films,  and 
of  the  proportionate  amount  of 
the  gross  receipts  derived  by  the 
defendant  from  the  picture,  as 
provided  in  tlie  contract.  It  is 
obvious,  however,  that  it  would 
be  impossible  in  this  case  to 
establish  what  the  gross  receipts 
would  be  where  the  defendants 
have  failed  to  accept  the  films. 
Ilcncc,  under  the  ])eculiar  cir- 
cumstances of  this  case,  th(! 
plaintiffs  would  have  the  right  to 

retain  the  negatives  and  films 
and  to  lease  or  rent  them  to 
third  parties  upon  the  best  terms 
obtainable,  for  the  purpose  of 
recouping  themselves  against  the 
unknowable  loss  sustained  by 
them  by  reason  of  the  Popular 
Pictures  Corporation's  alleged 
refusal  to  produce  the  pictures 
which  deprived  them  of  their 
proportionate  share  of  the  gross 
receipts.  It  seems  to  me  that 
upon  the  alleged  breach  of  the 
contract  on  the  part  of  the  de- 
fendant, by  its  refusal  to  accept 
the  negatives  and  films,  a  cause 
of  action  thereupon  accrued  for 
damages  for  breach  of  the  entire 
contract.  Unless  the  complaint 
is  amended  to  set  up  a  case  for 
damages  for  the  breach,  no  cause 
of  action  is  established.  As  the 
complaint  now  reads,  there  is 
no  allegation  as  to  what  the 
actual  cost  of  the  production 
was.  Tiie  defendant  London  & 
Lancashire  Indemnity  Company 
of  America  will  also  be  liable  !is 
indemnitor,  limited  to  the  amount 
of  the  actual  cost  of  the  produc- 



claim  the  ainount  so  roceivcd.  The  pluiiililT  inovt-d  for 
judpiipnt  on  that  special  defense,  which  was  granted  by 
the  special  term.  On  appeal  the  order  of  the  special  term 
was  reversed  and  it  was  h(;!d  that  the  defendants  were 
entitled  to  set  oiT  such  amounts  received  by  the  plaintiff. - 

*  GoUlbcrg  v.  Popular  Pictures 
Corp.  (1917),  178  A.  D.  (N.  Y.) 
86.  Headnotc:  The  plaintiff 
agreed  to  manufacture  and  de- 
liver to  the  defendant  a  moving 
picture  film  which  the  defendant 
was  to  have  yie  sole  right  to 
exliibit  in  the  United  States  and 
Canada  and  on  the  delivery  of 
the  film  the  defendant  was  to 
advance  to  the  jjlaintiff  the  ac- 
tual cost  of  manufacture,  not  to 
exceed  SI 4, 000.  The  defendant 
also  agreed  to  pay  to  the  plain- 
tiff fifty  per  cent  of  its  gross  re- 
ceipts from  the  exhibition  of  the 
film,  but  the  plaintiff  was  not 
to  be  entitled  to  said  percentage 
until  the  defendant  had  first 
reimbursed  itself  out  of  the  re- 
ceipts for  the  manufacturing  cost 
advanced  to  the  plaintiff  on  de- 
livery of  the  film,  so  that  the 
original  cost  of  manufacture  was 
ultimately  to  be  borne  solely  by 
the  j)laintiff  out  of  its  share  of 
the  receipts  of  the  defentlant. 
To  secure  performance  the  de- 
fendant gave  a  bond  of  the  de- 

fendant surety  company,  upon 
which  this  action  is  based,  which 
recited  and  referred  to  the  afore- 
said agreement  and  provided . 
that  nothing  therein  contained 
shall  modifj'  the  right  of  the  de- 
fendant to  repayment  of  the  ad- 
vances made  to  the  plaintiff  out 
of  the  moneys  realized  by  the 
defendant  on  said  production. 
The  answer  of  the  defendants 
alleged  that  acceptance  of  the 
film  was  refused  because  the 
pluintifT  liad  delivered  to  another 
exliibitor  substantially  the  same 
film  under  an  agreement  by 
which  the  plaintiff  was  to  receive 
from  the  other  exhibitor  a  per- 
centage of  its  receipts  from  the 
production  of  the  picture  in  the 
United  States  and  Canada  and 
tliat  it  had  actually  received 
certain  sums  of  money  from  said 

Held,  that  the  obligation  of  the 
defendant  surety  company  to 
pay  arose,  not  only  wlien  there 
Wits  an  acceptance  of  the  film 
manufactured    by    the    plaintiff, 


In  Levison  v.  Oes  ^  the  contract  between  the  parties 
provided  for  the  sale  and  dehvery  of  a  single  film  entitled 
"In  the  Hands  of  Impostors"  by  the  defendant  to  plain- 
tiff. The  defendant  refused  to  deliver  the  film  and  this 
action  was  brought  to  recover  for  the  breach. 

As  to  the  measure  of  plaintiff's  damages  the  court  held 
that  ''The  ordinary  rule  of  damage  for  the  breach  of  such 
a  contract  is  the  difference  between  the  market  value  of 
the  film  and  the  contract  price.  ...  I  think  it  is  fair 
to  assume  that  there  was  no  market  price  in  this  city  for 
this  particular  film,  and  that  the  plaintiff  is  therefore 
entitled  to  recover  as  special  damages  both  the  expenses 
incurred  by  him  in  preparing  to  exhibit  the  film  and  loss 
of  profits.  ...  In  this  case,  however,  I  do  not  think 
that  he  has  properly  proven  them.  In  order  to  recover 
anticipated  profits  under  actual  contracts,  the  plaintiff 
must  plead  and  prove  that  he  has  made  such  contracts 
and  that  the  defendant  when  he  agreed  to  sell  the  film, 
knew  that  the  plaintiff  had  made  or  contemplated  making 
such  contracts  which  he  could  not  fulfill  unless  the  de- 
fendant delivered  the  film  to  him." 

Further  on  in  the  opinion  the  court  furnishes  a  basis 
for  the  measurement  of  damages  as  follows: — "Before 
the  jury  can  however  return  a  verdict  based  upon  loss  of 
future  profits  the  plaintiff  must  present  to  the  jury  some 

but   also   when    the   plaintifT   in  cover  tlic  full  amount  of  $14,000, 

other  respects  did   what  it  was  as  the  moneys  received  from  the 

reciuired   to   do   under   the   con-  other  exhibitor  should  be  offset 

tract,  and  that  hence  the  special  against  the  claim, 
defenses  aforesaid  are  good  and  ^Levison    v.    Oes    (1917),    98 

tlic  plaintiff  is  not  entitled  to  re-  Misc.  (N.  Y.)  260. 


evidence  from  wliich  it  can  draw  a  reasonal)lc  infer- 
ence as  to  the  probable  approximate  amount  of  such 

In  Dressier  v.  Keijslonc  Film  Co.,^  the  plaint  iff,  an 
actress,  sued  to  restrain  defendant  from  granting  riglits  to 
third  parties  in  a  film  which  was  the  jcjint  property  of 
both,  and  for  an  accounting.  The  question  arose  whether 
the  rights  granted  by  the  defendant  with  respect  to  the 
film  were  in  the  nature  of  an  outright  sale  or  a  lease. 

Tn  holding  that  the  relationship  existing  between  the 
defendant  and  the  third  parties  was  that  of  lessor  and 
lessee  the  court  said:— "What  the  Keystone  Film  Com- 
pany has  done  was  to  grant  the  exclusive  right  to  use 
the  picture  for  a  Umited  term,  upon  the  payment  of  a 
fixed  sum.  Tliis  certainly  is  a  lease  and  not  a  sale.  No 
absolute  or  general  property  in  the  picture  was  conveyed 
or  assigned.  The  use  of  the  picture  for  a  term  was  all 
that  was  granted.  The  sum  paid  was  not  therefore  con- 
sideration for  a  sale,  but  was  rent  for  the  use  of  property. 
That  rent  is  payable  in  one  sum,  rather  than  in  install- 
ments, does  not  change  its  character."  ^ 

The  producer  is  entitled  to  maintain  as  high  a  standard 
as  he  can  attain  to  in  the  production  of  his  picture,  and 
the  distributor  or  releasor  may  not  arbitrarily  injm-e  that 
reputation  or  good  will.  For  instance,  where  the  contract 
provides  that  the  picture  is  to  be  released  for  a  ftrst  run 
only  in  Hrst-class  theatres,  the  distributor  is  not  at  Uberty 
to  lease  the  picture  to  cheaper  or  smaller  houses. 

Nor  may  he  mutilate  or  change  the  picture,  for  in  that 

*  Dressier     v.      Keystone     Co.       oth;   aff'd    172    A.    D.    (X.    Y.) 
(1915),  N.  L.  Law  Journal,  Aug.       954. 


respect  the  rights  of  the  producer  are  as  sacred  as  the 
rights  of  the  actor  who  played  in  it. 

The  distributor  may  not  omit  to  release  regularly  as 
provided  for  in  his  contract,  for  the  producer  is  entitled 
to  have  his  pictures  exhibited  before  the  public  at  such 
stated  intervals  as  he  may  deem  compatible  with  his  in- 
terest, and  a  distributor,  by  holding  back  the  release  of 
pictures,  is  in  a  position  to  seriously  affect  the  standing 
and  good  name  of  the  producer. 

Where  the  producer  has  contracted  for  a  certain  size 
of  type  or  display  in  the  advertising  of  the  picture,  he 
may  insist  on  receiving  the  same,  and  for  a  failure  to 
receive  it,  may  bring  an  action  in  damages.  If  the  re- 
leasor distributes  the  picture  with  a  name  other  than  the 
producer  upon  the  advertising  matter,  cause  for  injunc- 
tion would  be  made  out. 

We  have  not  discussed  the  situation  of  a  producer  who 
sells  outright  a  number  of  positive  films  of  motion  pic- 
tures for  use  in  various  territories.  "State  right"  sales 
are  often  made,  and  where  a  lump  sum  is  paid,  the  trans- 
action is  closed,  unless  by  special  contract  the  producer 
reserves  the  right  to  have  the  picture  exhibited  in  a 
certain  manner,  and  to  have  the  same  advertised  along 
certain  lines.  Where  those  reservations  are  not  made  by 
contract,  the  distributor  may  exhibit  the  picture  and 
advertise  the  same  in  any  manner  which  will  be  most 
profitable  to  him. 

Where  third  parties  come  in,  within  the  states  for 
which  the  exclusive  rights  have  boon  granted,  and  in- 
fringe upon  such  picture,  the  distributor  who  has  obtained 
the  rights  for  that  territory,  may  enjoin  such  infringers. 



And  it  would  seem  that  he  need  not  j(jin,  in  sucli  an 
action,  the  producer  from  whom  he  obtained  the  rights. 
If  (he  pnxhiccr  att('m])ts  to  hconso  another  for  tlie  same 
territory  antl  for  the  same  fihn,  he  will  also  be  restrained.'' 

'  General  Film  Co.  v.  Kalcm 
Co.  ct  Kinclograph  Co.  (1913), 
United  States  District  Court, 
South.  Dist.  of  N.  Y.,  April  IG. 
The  action  was  brought  to  en- 
join defendunt  K;doni  from  grant- 
iiig  a  hcenso  to  represent  a  cop\-- 
rifzilited  drama  and  the  defendant 
Kinetograph  Company  from  ex- 
hil)iting  the  same. 

Ward,  J.:  "The  effect  of  tlie 
contract  Ijetween  the  complain- 
ant and  the  Kalem  Company 
was  to  give  the  complainant  the 
exclusive  right  to  represent  and 
grant  to  others  the  right  to  repre- 
sent by  moving  pictures  the 
copyrighted  drama.  There  was 
nothing  left  in  the  Kalem  Com- 
pany to  grant  to  anyone  else 
during  the  continuance  of  the 
complainant's  exclusive  license. 
The  complainant  may  properly 
ask  for  an  injunction  restraining 
a  similar  representation  by  any- 
one else  even  though  acting  in 
good  faith  and  irithout  notice. 
The  motion  is  granted." 

Jesse  L.  Lasky  Co.  v.  Celebrated 
Players  Film  Co.  (1!)H),  214  Fed. 
(D.    C.)    SGI.      Defendant    con- 

tracted with  plaintifT  for  Illinois 
and  other  state  rights  for  "  lirews- 
ter's  Millions."  The  Chicago 
censor  eliminated  several  scenes 
and  while  defendant  was  at- 
tempting to  adjust  this  matter 
plaintilT  contracted  for  the  .same 
state  rights  with  another  com- 

//(/ /  tliat  plaintiff  was  not  en- 
titled to  enjoin  the  exhibition  of 
the  pictures  and  that  it  should  be 

Gilligham  v.  Ray  (1909),  157 
Mich.  488;  122  X.  W.  HI.  The 
complaint  set  forth  that  plaintiff 
had  acquired  from  the  Ciiicago 
Film  Exchange  the  sole  right  to 
exhibit  tiie  "(lans-Xelson  Fight" 
pictures.  That  defendants  had 
obtained  films  from  the  same 
exchange  and  were  about  to 
exhibit   them.     Said   the   court: 

"The  Chicago  Film  Exchange, 
so  far  as  the  bill  shows,  owed  no 
duty  to  complainant  io  protect 
him  against  the  unlawful  or 
fraudulent  use  of  their  film  by 
others.  If  complainant  had  any 
cause  of  action  whatever,  it  w:us 
against  defendants.     Having  ob- 



Where  the  producer  has  entered  into  a  contract  for  the 
sale  of  "state  rights"  and  before  performance  of  the 
same,  sells  the  right  to  the  same  territory  to  a  third  party, 
who  purchases  in  good  faith,  it  would  seem  that  equity 
will  not  decree  specific  performance  of  the  contract,  but 
leave  the  injured  party  to  his  remedy  at  law.^ 

However,  the  purchaser  of  state  rights  has  no  right  to 
duphcate  the  number  of  positive  prints  by  "duping" 
or  any  other  method. 

Where  state  rights  are  granted  upon  condition  that 
royalties  be  paid  and  the  distributor  breaches  that  con- 
dition, the  producer  may  maintain  replevin  for  his  filmsJ 

tained  the  exclusive  right  to 
exhibit  this  film  in  Muskegon, 
he  had  the  same  right  of  action 
against  any  person  unlawfully 
or  fraudulently  invading  that 
exclusive  right  that  the  Film 
Exchange  Company  itself  would 
have  had  in  the  absence  of  the 
contract.  It  would  hardly  be 
contended  that  the  corporation 
owning  and  controlling  the  use 
of  this  film  could  not  protect  its 
rights  by  suit  to  prevent  the  un- 
authorized use  thereof.  No  good 
reason  is  perceived  for  denying 
the  same  right  to  the  assignee 
of  the  corporation's  exclusive 
rights  within  the  contract  limits 
of  time  and  place." 

Tree  v.  Boivkelt  (Eng.)  (1890), 
12  T.  L.  R.  181.  Mr.  Hecrbohm 
Tree  huviiig  liccnstid  one  Abud 

to  produce  "Trilby"  in  certain 
territory,  it  was  held  that  Abud 
was  the  proper  person  to  main- 
tain an  action  for  infringement 
of  the  play  in  that  territory,  and 
not  Tree. 

See  also  Section  18. 

« Davis  V.  Epoch  Producing 
Co.  (1915),  91  Misc.  (N.  Y.)  631; 
155  N.  Y.  Supp.  597. 

^  Vilagraph  v.  Swaab  (1915), 
248  Pa.  478;  94  Atl.  126;  Lubin  v. 
Swaab  (1913),  240  Pa.  182;  87 
Atl.  597;  Biograph  Co.  v.  Inter- 
national Film  Traders  (1912),  76 
Misc.  (N.  Y.)  436;  134  N.  Y. 
Supp.  1069;  Adams  v.  Fellers 
(1910),  88  S.  C.  212;  70  S.  E.  722. 
For  a  discussion  of  and  excerpts 
from  the  above,  sec  Sec- 
tion 78. 

Sec  gcncr(dlij  on  the  rights  of  a 



Section  75. — Exhibitor — in  general. 

The  relationship  existing  between  the  distributor  and 
the  exhibitor  is  that  of  hcensor  and  licensee.  The  motion 
picture  is  rented  to  the  exhibitor  to  be  used  by  luin  at  a 
stipulated  place  and  for  a  stated  time.  Any  use  of  the 
film  at  any  place  other  than  that  agreed  upon  or  at  a  time 
other  than  that  specified,  constitutes  a  violation  of  the 
license  agreement,  and  subjects  the  exhibitor  to  an  action 
for  damages.*'  The  courts  will  also  construe  it  as  an  in- 
fringement of  the  copyright.^  They  have  even  gone 
to  the  extent  of  construing  such  an  act  as  a  conversion 
of  the  film.'" 

The  exhibitor  must  use  ordinary  care  in  the  handling 

principal  to  recover  moneys  rc- 
cciced  by  his  agenl  from  the  leasing 
of  films:  Frohman  Ammcmcnt 
Corp.  V.  lilinkhorn  (1917),  17S 
A.  D.  (N.  Y.)  431. 

^  Fennimj  Film  Service,  Ltd.,  v. 
Wolrcrhanipldn,  elc,  Cinemas, 
Ltd.  (Kmr.)  (1011),  3  K.  B.  1171. 
PhvintitT  agrecii  to  a  oortaiii 
motion  picture  to  defendants  for 
a  period  of  one  week  to  be  ex- 
liii)ited  at  eertain  speeilied  tliea- 
tres.  Defendants  aj^reed  not  to 
exhibit  the  lilni  at  any  tlieatres 
other  than  those  specifietl.  The 
defendants  exhibited  tlie  film 
at  theatres  other  than  those 
agrwd  upon  and  announeed  their 
intention  by   ix)sters  and  hand- 

bills of  exhibiting  the  film  at 
another  theatre. 

Held  that  in  addition  to  its 
right  to  damast'S  for  breach  of 
its  contract  plaintiff  was  entitled 
to  recover  damages  under  the 
English  Copyright  Act  of  1911, 
as  jK'rformances  of  the  film  :it 
places  other  than  those  agreed 
upon  constituted  an  infringe- 
ment of  plaintiff's  sole  right  to 
j)erform  the  work  in  public. 

»  Fenning  Film  Service,  Ltd.,  v. 
Wolverhampton,  etc.,  Cinemas, 
Ltd.,  (Eng.)  (1914),  3  K.  B.  1171. 

'"  Biograph  Co.  v.  International 
Film  Traders  (1912),  70  Misc. 
(\.  V.)  430;  134  X.  Y.  Sup|). 
1(M')9.  iS^e  sunnnary  of 
uniler  Section  78. 


of  films.  The  film  being  fragile  in  its  nature,  it  is  easily 
ruined.  If  the  operator  in  projecting  the  film  handles  it 
roughly  and  renders  it  unfit  for  further  use  the  exhibitor 
will  be  liable  for  the  value  of  the  print.  The  courts  will 
always  give  due  consideration  to  the  fact  that  each  ex- 
hibition leaves  its  imprint  upon  the  film  and  that  films 
are  pecuUarly  susceptible  to  ''wear  and  tear." 

Where  the  film  is  destroyed  by  accident  or  fire  which 
is  not  due  to  any  fault  on  the  part  of  the  exhibitor  or  his 
employes,  the  distributor  must  bear  the  loss. 

Where  the  film  is  libelous,  and  the  exhibitor  has  notice 
thereof,  he  is  a  joint  tort  feasor. 

If  the  exhibitor  is  prevented  from  showing  the  film 
because  of  the  closing  of  his  theatre  by  the  public  au- 
thorities he  remains  Uable  for  the  license  fees."  But  if 
the  pubHc  authorities  prohibit  him  from  exhibiting  the 
film  because  of  its  immoral,  lewd,  or  lascivious  character 
he  is  under  no  obligation  to  pay  such  license  fees;  as  in 
the  latter  instance  it  would  be  contrary  to  public  policy 
to  compel  one  to  carry  out  a  contract  which  in  its  per- 
formance would  contravene  the  law.^- 

There  may  be  said  to  have  arisen,  with  the  coming  in 
of  the  motion  picture  industry,  a  new  warranty,  that  is, 

"  Thring     v.     Lucas     (Kiiff.)-  proijrictors    to    cxliibit    a.    film, 

Strong  on  "Dramatic  and  Musi-  i)l;iiiitilT,  llu;  distributor  who  had 

cal  Law, "  3d  Ed.,  p.  30.    Sec  also  contracted  with  the  proprietors, 

ca.scs  under  Section  55.  could  not  recover  any  damages 

^^SloU  V.  Gamble  (lOng.)  (1916),  as  of  a  breach  of  contract.    Also 

115  L.  T.  309;  32  T.  L.  R.  579;  held  in  this  connection  that  plain- 

85  L.  J.  (K.  B.)  1750;  2  K.  H.  .^)0I.  HIT  was  not  an  aggrieved  party. 

Where    the    licensing;    authority  Stall,  ex  pai\  (I'^ng.)  (1910),  114 

had  refused  to  permit  the  theatre  L.  T.  234;  32  T.  L.  R.  84. 


an  implied  wurrauty  ul'  "clurily  of  uutline  and  iitnt'.ss  fur 
exhibition."  As  has  been  aheady  noted,  the  fihn  is  a 
very  dehcate  substance,  easily  injured  through  use,  and 
the  clarity  of  outline,  and  the  fitness  generally  for  ex- 
hibition decrease  in  proportion  to  the  number  of  times 
the  film  has  been  exhibited.  There  has  gradually  de- 
veloi)ed  in  the  trade  the  implied  warranty  that  a  film  re- 
leased for  exhibition  shall  be  reasonably  fit  to  be  shown. 
If  the  film  furnished  to  the  exhibitor  violates  this  war- 
ranty, he  may  uj)on  discovering  the  same,  either  rescind 
the  contract  and  sue  for  the  return  of  the  money  paid  by 
him  as  license  fees,  or  he  may  stand  u])on  the  contract 
and  sue  for  his  damages. 

A  hcense  to  exhibit  a  motion  picture  film  is  purely  per- 
sonal, and  may  not  be  assigned  by  the  licensee  without 
the  consent  of  the  licensor.  So  that  where  an  exhibitor 
has  an  agreement  with  the  distributor  or  releasor  for  a 
certain  number  of  releases  for  a  specified  period,  and  the 
exhibitor  sells  his  business  to  another,  he  may  not  assign 
his  contract  with  the  producer,  to  the  purchaser,  nor  is 
^uch  a  contract  an  asset  or  good  will  of  the  business.  It 
does  not,  in  the  event  of  the  exhil)it()r's  })ankruptcy,  pass 
to  his  trustee.'^ 

Where  an  exhibitor,  who  has  l)een  given  an  exclusive 
Hcense  to  exploit  a  film,  finds  that  his  licensor  is  attempt- 
ing to  violate  such  sole  grant,  he  may  enjoin  his  licensor 
as  well  as  the  one  with  whom  his  licensor  has  contracted. • ' 

' ' /n    re     Kuy-Tcc     Film     Ex-  ^^(itiural   Film   Co.   v.    Kalim 

change  (1011),  193  Fed.  (D.  C.)  Co.    (1913),    United   Stiites   Dis- 

nn.     Sec  (Uses  cited   in  Section  trict  Court,  South  Dist.  of  N.  Y., 

M.  April    16;    Jesse    L.    Lashj    Co. 


But  where  the  defendant  had,  after  the  making  of  his 
contract  with  the  plaintiff,  sold  some  of  his  rights  to  an 
innocent  third  party,  equity  would  not  decree  specific 

Section  76. — Advertising  matter,  programs,  bill-posters. 

The  methods  of  advertising  productions  of  both  plays 
and  motion  pictures  have  been  gradually  extended,  until 
they  have  reached  a  stage  where  they  embrace  every 
known  form  of  publicity  medium.  The  usual  and  cus- 
tomary mode,  however,  is  by  the  old-fashioned  billboard, 
the  poster  and  newspaper. 

On  the  other  hand,  quite  an  industry  has  been  built  up 
for  the  advertising  of  merchants  so  as  to  reach  the  theatre 
audiences  by  means  of  programs,  curtain  displays  and 
motion  picture  slides. 

A  contract  with  a  Hthogi'apher  for  the  making  of  posters 
has  been  held  to  be  one  for  work  and  labor,  in  one  state, ^^ 
and  one  for  goods  sold  and  delivered  in  another  state.  ^^ 

V.  Celebrated  Players  Film  Co.  graphs  and  engravings  as  adver- 
(1914),  214  Fed.  (D.  C.)  861;  tisements  for  a  theatrical  manage!; 
Gillingham  v.  Ray  (1909),  157  held  to  be  not  a  sale,  but  a  con- 
Mich.  488;  122  N.  W.  Ill ;  Tree  v.  tract  for  work  and  labor. 
noivkell  (I'hig.)  (1890),  12  T.  L.  11.  And  where,  after  the  work  was 
181.  See  Section  74,  footnote  ."),  completed  and  set  aside  for  the 
for  excerpts  from  above  cases.  Sec  manager,  and  he  did  not  come 
also  Section  18.  for  it,  and   the  goods  were  dc- 

'^  Davis    V.    Kjx/ck    Proditi-ing  stroyed  by  fire,  the  plaintiff  was 

Co.  (1915),  91  iMisc.  (N.  Y.)  G;il;  permitted     nevertheless     to     re- 

155  N.  Y.  Supp.  597.  cover  as  for  work  ami  labor. 

^UU;n(ralLiih.\.  Moore  {\m.)),  'Uiicn    v.     Abbey    (1891),     V.\ 

75  Wis.  170;  43  N.  W.  1124.    A  N.  Y.  Supp.  28().     In  an  action 

contract    to    manufacture    litho-  for    goods    sold    and    delivered, 


Under  ii  contmct  for  display  on  a  drop  curtain  it  was 
held  that  i)laiiitilT  could  recover  for  the  weeks  when 
performances  in  the  theatre  were  given.'** 

Wliere  tlie  owner  of  the  theatre  had  contracted  with 
the  j)laintifT  for  a  drop  curtain,  and  the  latter,  on  the 
strength  of  this,  had  erected  the  curtain  and  entered  into 
advertising  contracts  with  third  parties,  the  owner  of  the 
theatre  was  coiiipollod  to  permit  the  use  of  the  curtain 
in  the  theatre  during  the  term  of  the  contract.'^ 

nitulc  pursuant  to  a  sam|)le  litlio- 
graph  funiishwl  to  plaintilT  Ity 
dcfciKJant,  it  was  rcvcrsiljlc  error 
for  the  court  to  refuse  to  charge 
that  "if  the  jury  find  that  they 
(the  lithographs]  were  not  ac- 
cording to  tlie  sketches  the  phxin- 
tiffs  cannot  recover,"  the  ap- 
pellate court  holding  that  under 
a  general  or  si^ecific  denial  the 
defendant  might  give  evidence 
which  showed  or  tended  to  show 
that  the  evidence  relied  upon 
by  the  plaintilT  to  establish  a 
material  fact  was  untrue. 

David  Allen  Hi II posting  v.  A'///<7 
(Irish)  (lOlo),  Div.  Ct.,  2  I.  R. 
213.  Defendant,  proprietor  of 
a  theatre,  held  liable  for  brcacli 
of  a  contract  for  bill  posting. 

'*  Imperial  Curtain  Co.  v. 
Straiiss  (1912),  7(1  Misc.  (X.  V.) 
533;  135  N.  Y.  Supp.  577.  When 
in  a  contract  for  the  <lisplay  of 
ilefendant's   advertisement   on    a 

theatre  drop  curtain,  the  defend- 
ant agreed  to  pay  a  .specified 
sum  per  week  during  the  period 
of  the  contract  and  "credit  wa.s 
to  be  given  for  each  entire  week" 
the  advertisement  was  not  shown: 
//(/'/  that  plaintiff  was  obligated 
to  display  the  advertisement 
during  those  weeks  when  per- 
formances were  given  and  wa.s 
entitled  to  recover  for  display 
of  the  ailvertisement  after  de- 
fendant had  directeti  its  dis- 

'^lieer  v.  Canary  (1896),  2 
A.  I).  (N.  Y.)  51S;  38  X.  Y. 
Supp.  2;}.  Defendants  agreed  to 
])ermit  plaintiff  to  erect  a  cur- 
tain in  front  of  the  proscenium 
of  their  theatre,  the  curtain  to 
be  covered  by  advertisements 
and  the  plaintiff  to  pay  a  monthly 
rental  for  the  privilege.  Held 
tliat  plaintiff  was  entitled  to  an 
order  directing  defendant  to  use 



But  where  the  owner  of  the  curtain  is  remiss  in  the 
payment  of  his  rentals,  the  owner  of  the  theatre  may 
rescind  the  contract  and  remove  the  curtain.  2° 

A  change  in  the  character  of  the  productions  given  at 
the  theatre  from  high-class  to  cheap  and  inferior  drama 
and  vaudeville,  breaches  the  contract,  and  the  curtain 
may  be  removed.-^ 

In  a  contract  for  program  advertising  made  for  three 
theatres,  it  was  held  that  the  contract  was  not  divisible, 
and  a  closing  of  one  of  the  theatres  breached  the  entire 
contract.-^    And  in  a  contract  of  this  kind  made  for  the 

the  curtain,  it  appearing  that 
plaintiff  had  been  put  to  some 
expense  in  furnishing  and  setting 
up  the  curtain  and  had  entered 
into  contracts  for  the  display  of 
advertisements  thereon,  the  order 
of  special  term  denying  the  mo- 
tion for  an  injunction  pendente 
lite  being  reversed. 

•"  BeUinck  v.  Tacoma  Theatre 
Co.  (1910),  61  Wash.  132;  111 
Pac.  1045.  Defendant  permitted 
plaintiff  to  hang  an  advertising 
curtain  in  its  theatre  for  which 
it  was  to  receive  ."$175  a  month 
payable  in  advance.  Plaintiff 
made  partial  payments.  De- 
fendant rescinded  tlie  contract, 
and  the  court  held  that  while  the 
contract  was  silent  on  that  jioint, 
that  time  was  nevertheless  of  the 
essence  of  the  contract,  and  plain- 
tiff was  prop(!rly  non-suited. 

-'  Nixon  &  Zimmerman  v.  Lee 
Lash  Co.  (1911),  40  Pa.  Sup.  Ct. 
89.  Where  the  owner  of  a  drop 
curtain  contracts  to  put  his  cur- 
tain in  a  theatre,  for  a  term  of 
five  years,  and  after  a  time  the 
performances  given  at  the  house 
are  changed  from  legitimate  dra- 
matic productions  to  cheap  vaude- 
ville, the  contract  is  breaduMl 
and  the  owner  of  the  curtain 
may  take  it  back  and  be  relieved 
from  future  payments  under  the 

-^Ilazzard  v.  Ho.vsie  (1889),  53 
Hun  (N.  Y.),  417;  6  N.  Y.  Supp. 
295.  The  action  was  brought 
upon  a  contract: 

"I  hereby  agre(>  to  pay  I'^dward 
J.  Ilazzard  the  sum  of  SS.,")!)  por 
week  for  publishing  my  adver- 
tisement in  the  l<'ifth  Av(>nue, 
Union  S(iuare  and  Lyceum  Thea- 

ADVERTIrtlNO    M  ATTHR,    I'liOGRAMR,    HIM^I'OSTERS      231 

length  of  II  theatrical  season,  the  jury  was  permitted  to 
determine  what  period  constituted  such  a  season.-^  A 
faiUire  to  give  the  specified  number  of  porformaiu-cs 
makes  tlie  owner  of  the  theatre  Hable  under  the  contract.-' 
Where  tlie  performance  of  the  contract  "depends  upon 

trc,  to  occupy  one  inch  on  i)ro- 
gram  page  for  the  tlicatre  season. 
Season  ISSO,  1SS7. 

"Anna  P.  Hoxsie." 

II(l({  that  tliis  was  an  entire 
contract,  and  where  the  Fiftli 
Avenue  Theatre  closed  first,  the 
contract  was  tertninated  at  tliat 
time  and  defendant  was  Hable 
only  up  to  that  time. 

»  Straffurd  v.  Stetson  (1910),  41 
Pa.  Sup.  Ct.  5G0.  The  contract 

"lasert  our  advertisement  in 
the  Kieth's  Chestnut  Street  Thea- 
tre programme  for  the  (no  other 
piano  house  ad.  hut  Blasius  & 
Sons)  theatrical  season  of  1902 
and  190;i,  to  occupy  space  of 
opposite  page  4,  on  page,  for 
which  we  agree  to  pay  t<in  dollars 
per  week  payables  every  four 
w(H^ks."  Pro]M^rly  sul)niittc(l  to 
the  jury  as  to  the  length  of  the 
"theatrical  season  of  1902  and 

^*  Straiiss  V.  Ilnminerstein 
(1912),  152  A.  D.  (N.  Y.)  12S;  i:{() 
N.  Y.  Supp.  613.  Defendant 
granted  to  plaintiff  the  exclusive 

license  to  circulate  programs  in 
defendant's  theatre  for  a  specified 
period;  paragraph  second  pro- 
videil  that  there  would  he  given 
six  performances  a  week  for 
twenty  consecutive  weeks  in  each 
year,  plaintiff  agreeing  to  pay  a 
specified  sum  jx-r  performance^ 
the  contract  further  provided 
that  if  the  giving  of  grand  ojMTa 
should  he  discontinued,  the  plain- 
tiff should  at  its  option  have  all 
the  program  rights  with  resjx^ct 
to  such  other  performances  as 
might  be  given  at  the  theatre. 
Ilcht  that  the  agreement  con- 
tained in  paragraph  second  was 
ai)solute  and  unqualiliod  and 
tiiat  ui)on  defendant's  failure  to 
give  the  specified  number  of  per- 
formances for  the  period  therein 
stated  plaintiff  could  maintain 
action  for  the  breach  of  the  con- 
tract, subject,  however,  to  this: 
that  if  plaintiff  availed  it.><elf  of 
its  option  and  furnished  jirogram 
at  performances  other  than  that 
of  grantl  ojwra,  it  could  not  then 
recover  for  a  breach  (»f  para- 
graph second. 



the  happening  of  an  event  over  which  neither  party  has 
any  control,  an  impHed  condition  will  be  read  into  the 
agreement  to  the  effect  that  the  contract  shall  be  abro- 
gated upon  the  non-happening  of  such  an  event."  -^ 

Section  77. — What  are  fixtures? 

In  considering  what  tests  to  apply  to  the  various  parts 
of  the  theatre  building  to  determine  whether  or  not  they 
are  fixtures,  regard  must  be  had  to  the  use  for  which 
they  are  intended,  the  manner  in  which  they  are  attached 
to  the  realty,  and  what  the  condition  of  the  theatre 
would  be  were  they  removed. 

Chairs  on  the  floors  of  the  orchestra  and  balconies  and 
in  the  boxes  are  fixtures  attached  to  the  realty  and  may 
not  be  removed, -''  although  a  distinction  has  been  made 

"  Marks  Realty  Co.  v.  "Chwxh- 
ills"  (1915),  90  Misc.  (N.  Y.) 
370;  153  N.  Y.  Supp.  264.  See 
also  Marks  Realty  Co.  v.  Hotel 
Hermilage  (1915),  170  A.  D. 
(N.  Y.)  484;  156  N.  Y.  Supp.  179; 
Marks  Really  Co.  v.  Rectors 
(1915),156N.  Y.  Supp.  180. 

^'- Gould  V.  Springer  (1912),  200 
N.  Y.  041;  99  X.  K.  149.  Lessw 
of  a  theatre  was  notified  by  the 
lioartl  of  Health  to  remove  torn 
and  unclean  carpets  and  unsafe 
and  broken  cliairs  from  the  or- 
chestra floor.  Plaint  ilTs  inad(^ 
the  re|)airs  and  brought  action 
for  the  sum  exix-ndcd.  Ihlil 
that  chairs  on   the  floor  of  the 

orchestra  were  fixtures  attached 
to  the  realty.  The  rights  of  the 
parties  being  fixed  by  the  lease, 
tlie  plaintiff  was  under  no  duty  to 
make  the  repairs,  and  a  verdict 
in  plaintiffs'  favor  was  affirmed. 

Forbes  v.  Howard  (1856),  4 
R.  I.  364.  Where  in  a  contract 
for  the  construction  of  a  build- 
ing the  (U'fendant  agreed  to  fur- 
nish the  fixtures  of  .such  a  build- 
ing it  was  held  that  seats  were 
fixtures  and  should  have  been 
furnished  by  defendant. 

To  the  same  cjfeet:  Render  v. 
Kiiuj  (I'.lOi),  111  Fed.  (C.  C.)  60; 
(Hivvr  v.  Lansimi  (1S99),  59  Neb. 
219;  80  N.  W.  829. 



hotwocn  suph  chairs  as  wciv,  and  such  as  were  not  fas- 
tciictl  to  tlic  floor.'-'  Intention  of  the  parties  is  of  par- 
amount importance,-^  although  such  intention  may  Ik* 
spelt  out  by  th(^  fact  that  a  chattel  mortgage  was  placed 
upon  the  articles  in  (luostion.'-"-' 

Lighting  and  Gas  Appliances  that  are  essential  to  the 
operation  of  the  theatre  are  fixtures.^"  This  is  especially 
true  whore  those  appliances  have  been  so  built  as  to 
hannonize  with  tlio  gonoral  decoration  of  the  theatre, 
thereby  showing  an  intent  to  make  them  a  permanent 
part  of  tho  realty."" 

^  SecuriUj  TniM  Co.  v.  Temple 
Co.  (1904),  (i7  X.  .1.  i:(i.  r)14;  oS 
At!.  865. 

^  Sosiiinn  V.  Conlon  (1S04),  Tu 
Mo.  App.  2.").  Ill  :iii  action  to 
establish  a  mochanic's  lien  it  was 
hold  tliat  tho  tost  whethor  the 
inatoiials  furnished  for  tlio  hiiild- 
iiiK  of  tlio  thoatro  were  iixtiiros, 
was  whothor  such  materials  woro 
furnished  and  received  with  tho 
intention  of  forniiiif^  an  intoRral 
part  of  tho  thoatro.  To  the  mine 
cffed:  U nihil  v.  Mloirnn  (1SS2), 
7S  Tonn.  .')2;{. 

''.IWrcir.s  V.  Chnntllir  (ISSS), 
27  III.  AiM).  10:{.  //cW  that  chairs 
contained  in  an  opera  house  wore 
not  fixtures  ui)on  tho  ground  it 
was  tlie  intention  of  tho  ownois 
of  tlje  ojx^ra  house  and  those 
furnishing  the  chairs  that  they 
<^houKl  not  be  regarded  a.s  such, 

such  intention  being  evidenced, 
atnotiR  other  things,  by  a  chattel 
mortgage  given  thereon. 

»"  Sccurily  Tnist  Co.  v.  Temple 
Co.  (1904),  07  N.  J.  Eq.  514;  58 
Atl.  805.  Hut  see:  McKeagc  v. 
Hanom-  Fire  Im.  Co.  (1880),  81 
X.  Y.  38;  N.  Y.  Life  //w.  Co.  v. 
Allison  (1901),  107  Fed.  (C.  C.  A.) 

^'  Wnhle-PhilUps  Co.  v.  FiU- 
gcmld  (1914),  83  Misc.  (X.  Y.) 
0;U);  140  X.  Y.  Supp.  562;  afT'd 
1.57  X.  Y.  Supp.  11.50.  .\ction 
to  foreclose  mochanic's  lion  u|)on 
a  theatre  building  and  office 
building.  The  <|U(»stion  w;vs 
whethor  certain  lighting  lixtun^ 
wore  part  of  the  realty.  Judge 
Cohalan  held  that  tiie  light  inn 
fixtures  in  the  office  building 
were  not  of  a  jXTmanont  charac- 
ter.     But    that    in    the    theatre 



The  Switchboard  was  also  held  to  be  a  fixture  as  well 
as  the  wires  and  lighting  plant. ^■- 

The  Drop  Curtain  has  been  held  to  be  an  integral  part 
of  the  realty  and  not  capable  of  being  removed.^'' 

Scenery  which  is  not  of  a  permanent  character  and  not 
fastened  in  particular  to  anything  is  not  a  fixture,^*  al- 

building  the  lighting  fixtures 
were  part  of  a  scheme  to  har- 
monize with  the  decorations  and 
interior  construction  of  that  part 
of  the  building.  To  the  same 
effect:  Wahle-Philllps  Co.  v.  Fifty- 
Ninth  Street  and  Madison  Ave. 
Company  (1912),  153  A.  D. 
(N.  Y.)  17;  138  N.  Y.  Supp.  13; 
aff'd  214  N.  Y.  684;  108  N.  E. 

"  Webb  V.  Neiv  Haven  Theatre 
(1913),  87  Conn.  129;  87  Atl.  274. 
Held  that  the  lighting  plant, 
switchboard,  wires  and  the  like 
were  fixtures  and  not  removable, 
even  where  the  lessee  had  taken 
out  the  old  ones  and  replaced 
them  by  a  new  plant,  since  the 
house  was  practically  useless 
without  such  plant,  and  an  intent 
to  make  it  a  permanent  part  of 
the  freehold  had  to  be  j)re- 

^^  Bender  v.  Kituj  (liiOl),  111 
Fed.  (('.  C;.)  00;  Waycross  v. 
Sossman  (1894),  94  Ca.  100;  20 
S.  K.  252. 

^^  Bender  v.  King  (1901),  111 
Fed.  (C.  C.)  60.  Held  that  opera 
house  chairs  screwed  to  the 
ground,  appliances  to  facilitate 
handling  of  scenery  during  per- 
formances and  drop  curtain  were 
fixtures  and  went  with  the  realty; 
that  scenery  which  was  in  no 
way  attached  to  the  building 
and  was  shown  to  be  capable  of 
being  used  in  other  buildings 
was  personalty.  To  the  same 
effect:  Security  Trust  Co.  v. 
Temple  Co.  (1904),  67  N.  J.  Eq. 
514;  58  Atl.  865;  New  York  Life 
Ins.  Co.  v.  Allison  (1901),  107 
Fed.  (C.  C.  A.)  179. 

But  see:  Sosman  v.  Conlon 
(1894),  57  Mo.  App.  25.  Held 
that  while  stage  fittings  and 
scenery  were  removabl(%  they 
were  nevertheless  fixtures. 

"The  question  is  not  whether 
they  composed  integral  parts  of 
a  building,  l)ut  whether  they 
were  furnished  or  received  with 
the  intention  of  forming  integral 
])arts  of  a  theatre  buildimj.  .  .  ." 

REPLKVIV    OF'    FIIAf    AVI)    M\(HI\'R 


though  spociul  sccnc'iy  constituting  part  of  the  pcriiiaiicut 
stage  cHiuipnicnt  has  been  held  to  be  a  fixture.^ 

Ticket-booths  are  not  fixtures;  nor  are  portal>l(*  dance 
floors  put  up  in  sections,'"''  nor  a  carousel  in  an  amusoniont 
l)ark,  even  though  an  old  one  had  been  removed  and  a 
new  one  substituted  1)V  the  lessee." 

Section  78. — Replevin  of  film  and  machine. 

Where  the  i)laintilT,  the  owner  of  motion  picture  films, 
had  leased  them  to  defendant  under  a  license  agreement 
which  the  latter  had  violated,  the  plaintiff  was  entitled 
to  maintain  rei)levin  for  the  possession  of  the  films. ''^    The 

^^  Oliver  v.  Lansnng  (1899),  .')9 
Nel).  219;  80  N.  W.  829.  Held 
that  "tho  staRC  appointmonts, 
such  as  sconory,  etc.,"  as  vvoll 
as  tho  opera  cliairs  fustoiiod  to 
tlio  floors,  all  of  which  had  \)0('\\ 
huilt  and  dosignod  specially  for 
tho  huililiiiK  wore  fixturos  and 
passed  with  (he  realty;  that  a 
piano,  carpets  :iiid  curtains  were 

Waycro^s  v.  Sossman  (1894), 
94  Ca.  100;  20  S.  K.  2r)2.  Ihhl 
that  scenery  and  ftther  articles 
constitutiuR  tho  staRO  and  scenic 
outfit  of  an  opera  house  a.s  well 
as  droi>-eurtain,  wings,  borders, 
set-houses,  settees  and  balus- 
trades, were  fixtures.  To  the  same 
etTcet:  drewnr  v.  AU(umy,  .i  Teiui. 
Ch.  .■)84. 

'» Scciin'lii  Trust  Co.  v.  Temple 

Co.  (1904),  07  X.  J.  Va{.  r)14;  ."iS 
Atl.  SO.").  Held  that  the  f(;llow- 
ing  were  not  fixtures  of  a  theatre: 
stage-scenery,  chairs  not  fas- 
tened to  tho  realty,  combination 
closet,  clock,  ticket-boxes,  mirrors, 
tools,  wrenches  and  oilfitter,  large 
portable  dance-floor  in  sections. 

''Midler  V.  Riltersrltle  Hotel 
(l9i;i),240Pa.  79;S7  Atl.  421. 

^^Lubin  V.  Swaah  (19i;i),  240 
Pa.  182;  87  Atl.  597.  This  was 
an  action  in  replevin  to  recover 
nine  motion  i)icture  films  leased 
under  a  licensed  agreement. 
PlaintitT  had  been  licensetl  i)y 
the  Moving  Picture  Patents  Co.. 
owner  of  patents,  to  make  and  films  to  exchiinges;  defeiid- 
ant  operated  an  exchange.  The 
contract  provided  that  on  t(>r- 
mination   for  a   breach    plaint  ill 



physical  property  of  the  films  is  in  the  hcensor,  which  is 
sufficient  for  the  purposes  of  the  action. 

Likemse,  the  owner  of  a  motion  picture  machine  may 
reple\'y  the  same,  even  though  the  same  was  taken  out 
of  the  state  and  sold  to  a  bona  fide  third  party. ^^ 

In  each  case,  the  rule  is  that  while  a  license  in  the 
use  of  the  thing  may  be  granted,  title  to  the  physical  film 

would  after  20  days  have<tlie  right 
to  possession. 

Defenses  were  mainlj^  undue 
oppression  and  conspiracy  to 
harm  the  defendant,  and  the 
premature  issuance  of  the  writs 
of  replevin. 

Judgment  in  favor  of  defend- 
ant was  reversed  on  assignments 
of  error  that  defendant,  after 
notice  of  cancellation  of  the  con- 
tract, had  no  right  to  license  the 
exhibition  of  the  films  to  third 

Vitagraph  Co.  v.  Sicaab  (1015), 
248  Pa.  478;  94  Atl.  126.  This 
case,  like  Lubin  v.  Swaab,  240 
Pa.  182,  presents  the  question 
of  the  right  to  rci)l(>vin  motion 
picture  fihns,  the;  defenses  also 
being  conspiracy  and  bad  faith. 

Biogroph  Co.  v.  JnlernuUonal 
Film  Traders  (1912),  7G  Misc. 
(N.  Y.)  430;  134  N.  Y.  Supp. 
10G9.  Plaintiff  was  a  licensed 
manufacturer  of  the  Motion  Pic- 
ture Patents  Co.  It  rented  fihn 
to  exliibitors  licensed  by  the  Mo- 

tion Picture  Patents  Co.,  in  ac- 
cordance with  its  agreement 
with  the  Patents  Co.  The  title 
in  the  film  was  in  plaintiff. 
Defendant  was  not  a  licensed 
exhibitor  and  could  not  clearly 
show  how  it  came  into  possession 
of  the  films.  Held  that  plaintiff 
could  replevin  the  films  and  that 
defendant  in  refusing  to  deliver 
up  the  same  was  guilty  of  conver- 

'^  Adams  v.  Fellers  (1910),  88 
S.  C.  212;  70  S.  E.  722.  A  mo- 
tion picture  machine  was  rented 
in  Georgia  bj'-  plaintiff  to  one 
Heatherly,  under  an  oral  agree- 
ment that  the  machine  was  not 
to  be  taken  outside  of  the  state; 
the  rental  agreement  was  not 
recorded,  the  state  of  (Jeorgia 
not  requiring  such  recording. 
The  machine  was  removed  to 
South  Carolina  and  there  sold 
tf)  a  bona  fide  purchaser,  the  de- 
fcMulant.  lUid  plaintiff  w:vs  en- 
tilled  to  a  return  of  machine. 


or  iiiachine  still  remains  witli  tin-  licensor;  and  on  tiic 
breach  of  the  agreement  between  them,  the  licensor  may 
rcscintl  the  contract  and  get  back  the  physical  possession 
of  ills  property. 

Section  79. — Theatre  leases. 

While  there  was  an  old  Eii«i,lish  custom  with  reference 
to  one  month's  termination  of  a  lease  of  a  theatre  upon 
notice,  the  modern  lease  of  a  theatrical  building,  theatre 
or  music  hall  does  not  differ  from  leases  of  real  proi)erty 
in  general.  However,  as  productions  increase  in  magni- 
tude, and  the  relationship  between  the  theatre  and  the 
various  forms  of  amusement  offered  in  it  becomes  more 
and  more  complex,  covenants  more  or  less  ])eculiar  to 
the  theatrical  profession  are  inserted  into  the  lease,  and 
come  up  for  construction  by  the  courts  from  time  to  time. 

Where  the  lessee  of  a  theatre  was  described  as  "]\I.  G. 
representing  ]\Icssrs.  C.  A.  C.  &  Co.  jManager  of  the 
A.  0.  B.  Co."  it  was  held  that  "M.  G."  was  hable  as  a 
jjrincipal  and  the  words  added  to  his  name  were  merely 
words  of  description."' 

A  theatre  is  often  spoken  of  as  a  "fu'st-class  theatre" 
to  distinguish  it  from  theatres  in  which  cheaper  and 
inferior  grades  of  plays  are  produced.  Where,  in  the 
lease,  the  parties  have  covenanted  that  none  but  "first- 
class"  productions  are  to  be  given  in  the  theatre,  a  breach 
of  such  covenant  l)y  the  giving  of  inferior  productions, 
entitles  the  lessor  to  maintain  hold-over  ])rocecdings,^' 

<"(7rfl«  V.  McVickar  (1S74),  S      FA  Miso.  (N.  V.)  M;  105  X.  Y. 

Bis.s.  7;  10  Fed.  Cius.,  No.  .'),708.      Siipp.  477.      liuld-ovcr  procccd- 

*'  Mailer  of  ISchoclkopf  (1907),      iiigs  by  lessor  of  theatre  because 


In  Hammerstein  Opera  Co.  v.  Belasco,^'-  the  interesting 
question  arose  as  to  whether  the  exhibition  of  motion 
pictures  violated  a  covenant  in  a  lease.  The  lease  pro- 
vided that  the  premises  were  ''to  be  used  and  occupied 
by  the  said  tenant  as  a  first-class  theatre"  and  that  the 
tenant  would  not  use  them  or  permit  them  to  be  used 
"for  any  business  purpose  deemed  disreputable  or  extra 
hazardous  on  account  of  fire,  etc."  Belasco  had  used  the 
theatre  for  high-class  plays  for  wliich  he  charged  from 
fifty  cents  to  two  dollars  admission;  he  had,  however, 
hcensed  the  Universal  Film  Company  to  exliibit  in  the 
theatre  a  motion  picture  to  which  admission  fees,  ranging 
from  twenty-five  cents  to  one  dollar,  were  charged.  It 
was  claimed  that  such  motion  pictures  were  not  "first- 
class"  plays,  and  that  the  premises  were  rendered  "extra 
hazardous  by  fire." 

The  court  sustained  the  plaintiff  and  granted  the  in- 

of  breach  of  covenant  to  operate  the  facts  set  out  in  the  affidavits 

"for  any  other  purpose  than  a  jjresented    by    the    plaintiff    arc 

theatre     and     opera     house     of  true,  then  the  premises  are  not 

strictly  the  hrst  class,  etc."    De-  being  used  as  a  first-class  theatre, 

fendant    gave    exhibitions    of    a  und  if  such  use  is  continued  the 

cheaper  standard,  and  the  court  value   of    the    property   will    be 

held  that  the  lease  was  violated,  greatly       diminished.  .  .  .     Not 

and  the  huidlonl  was  (Mititlcd  to  only  this  but  tlio  fact  is  not  dis- 

an  order.  puted  i)ut  that  the  use  to  which 

*^  Hammerstein       v.       IMaxco  the  theatre  is  now  being  put  is 

(1914),  161  A.  I).  (N.  Y.)   109;  extra   hazardous   on   account   of 

146  N.  Y.  Supp.  341.  fire.     In  answer  to  this  the  de- 

^'  Ffammerslein       v.       IMa^ro  fcndants   state;    they    liave   com- 

(1914),  161   A.  D.   fX.   y.)    199;  plied   with   ail   tlie   requirements 

116  .\.   V.  Sui)|).  .'ill.     "...   If  of  tiic  luuiiicipai  authorities,  but 



In  a  later  decision,  however,  it  was  held  that  a  cove- 
nant to  exhibit  pictures  for  admission  ranging  from  twenty- 
five  cents  to  two  dollars  was  not  violated  by  cliarging 
only  twenty-five  cents  to  fifty  cents." 

if  so  the  present  use  of  the  theatre 
would  seem  to  he  a  violation  of 
the  clause  with  reference  to  an 
increased  hazard  on  account  of 

**aod€t  V.  Frohman  (1916), 
N.  Y.  Law  Journal,  Feb.  2.3. 
"Application  pendente  lite  for 
injunction.  The  plaintifT,  the 
owner  of  the  Knickerbocker  Thea- 
tre, .socks  to  enjoin  the  defendant 
from  presentint;  in  said  theatre  a 
continuou.s  motion  picture  per- 
formance at  admission  prices 
2.")  and  .')0  cents.  They  assert 
tiiat  such  action  on  the  part  of 
defendants  is  a  violation  of  the 
covenants  of  the  lease  of  tlu; 
theatre.  It  appears  that  the 
defendants  Ilayman,  Klaw  «fe 
Erlanger  and  Charles  Frohman, 
Inc.,  are  lessees  from  the  plaintilT, 
and  under  their  lease,  entered 
into  an  agreement  with  the  de- 
fendant Aitken,  granting  the 
use  of  the  theatre  to  the  defend- 
ants under  certain  restrictions. 
The  following  provisions  are  con- 
tained therein:  'The  parties  of 
the  first  part  let  unto  the  party 
of  tlie  second  part  (.Vitken)  fur 

the  purpose  of  e.\hiljiti(ms  of  motion  pictures  only 
for  a  jHjriod  of  one  year,  com- 
mencing Sept.  1,  191"),  and  ter- 
minating August  31,  1916,  the 
Knickerbocker  Theatre.  .  .  .  The 
secontl  party  defendant  (Aitken) 
agrees  that  said  premises  are  to 
be  used  only  for  the  exhibition 
of  first-class  motion  pictures,  and 
not  otherwise,  prices  of  admission 
to  be  anil  maintained  at  the  .same 
standard  as  that  of  other  first-  theatres  on  Broadway;  even- 
ing prices  to  be  25  cents  to  S2.00. 
The  second  party  (Aitken)  agrees 
further  to  use  said  theatre  as  a 
theatre  of  the  first  cla-ss  in  the 
City  of  New  York.  .  .  .  The 
jxirty  of  the  second  part  hires 
the  said  theatre  subject  to  the 
leiuse  of  the  parties  of  the  first 
part  with  the  owners  of  the  said 
building.  .  .  .'  It  is  as.scrtcd 
that  the  defendant  Aitken  and 
the  defendant  Triangle  Film  Co. 
are  violating  this  agreement  by 
offering  the  theatre  sis  a  con- 
tinuous moving  picture  house 
at  the  prices  above  stattnl,  and 
presenting  an  addition  to  motion 



Rent  is  suspended,  when  so  covenanted,  when  the 
theatre  is  closed  by  the  authorities,  but  the  covenant 
must  be  express. ^^  Where,  however,  the  lessee  has  not 
made  any  such  reservation,  and  the  police  or  the  local 
authorities,  because  of  non-compliance  with  their  regu- 

picture  songs,  musical  numbers 
and  other  acts;  that  the  defend- 
ant, it  is  claimed,  has  further 
violated  the  agreement  by  trans- 
ferring the  said  lease  or  rights 
thereunder  to  the  Triangle  Film 
Co.  I  am  of  the  opinion  that 
the  acts  complained  of  are  not 
clearly  such  as  to  constitute  a 
breach  of  the  covenant  contained 
in  the  lease  for  violation  of  which 
this  relief  is  sought.  The  case  is 
novel  and  far-reaching  in  its  im- 
portance. It  is  a  matter  of 
serious  question  whether  or  not 
it  can  be  decided  on  affidavits. 
Through  the  introduction  of  mov- 
ing picture  and  photo  plays  into 
the  theatrical  field  there  has  oc- 
curred therein  an  evolution  in  the 
production  and  presentation  of 
plays;  in  fact,  the  entire  trend 
of  the  business  may  have  so 
evolved  as  to  permit  the  defend- 
ants to  carry  on  their  business 
as  now  being  conducted  without 
violating  the  restrictive  cove- 
nants of  the  lease.  pA'en  though 
irreparable   injury   be  shown,  in 

view  of  the  short  time  which 
the  lease  has  to  run,  unless  the 
right  of  those  seeking  the  in- 
junction is  clear  and  unmistak- 
able this  court  may  not  intervene 
to  prevent  the  use  of  the  theatre 
in  the  manner  that  it  is  now 
conducted.  The  issues  are  im- 
portant and  the  determination 
should  be  left  to  the  trial  court, 
and  the  injunction  ad  interim 
must  be  denied." 

« Lennox  v.  Curzon  (Eng.) 
( 1906) ,  22  T.  L.  R.  6 11 .  Under  a 
lease  for  a  theatre  which  was  in 
process  of  construction  it  was 
j)rovided  that  when  "closed  by 
order  of  any  superior  authority, 
etc.,"  the  rent  was  to  be  sus- 
jiended.  An  adjoining  railway 
builtling  collapsed  and  the  theatre 
structure  becoming  unsafe,  the 
London  County  Council  refused 
to  issue  a  license. 

Held,  that  the  theatre  was 
"clo.sed  by  order  of  a  superior 
authority"  and  that  the  rent  was 



lations,  .sliut  down  the  tlieatrc,  the  rent  reserved  accrues 
nevertheless  and  tlie  lessee  is  Uable  therefor.'® 

Where  the  theatre  is  destroyed  by  fire  before  the  com- 
mencement of  the  term  of  the  lease,  the  lessee  is  rclicv(»d 
from  Ills  obligation  thereunder.'^ 

In  Adler  v.  Miles,*^  where  the  lease  provided  that  the 
demised  i)rcmises  were  "to  be  used  and  occupied  for  the 
purposes  of  a  place  of  amusement  for  the  exhibition  of 
moving  pictures  and  for  no  other  purposes  whatsoever" 
a  city  ordinance  subsequently  enacted  making  the  giving 
of  motion  pictures  in  this  theatre  unlawful,  was  held  suf- 
ficient to  exonerate  both  the  lessee  and  his  surety  from 
the  obligation  of  paying  rent. 

**  Lwniansky  v.  Tcssier  (1912), 
213  Mass.  182;  09  N.  E.  1051. 
Tlie  dcmi.scd  premises  were  leased 
for  a  vaudeville  and  moving  pic- 
ture theatre.  Under  tlie  lease, 
the  lessee  was  required  to  make 
all  inside  repairs.  The  state 
police  notified  the  lessor  that 
unless  certain  interior  alterations 
were  made  the  would  be 
revoked.  The  lessee,  knowing 
of  the  requirements  of  the  state 
police,  but  not  complying  with 
them  although  he  was  obligated 
so  to  do  under  his,  cannot 
excuse  himself  from  paying  the 
rent  stipulated  under  the  lease 
when  the  license  is  revoked  be- 
cause of  non-compliant'O  with  the 
state  police  reciuiremcats. 

« Taijlur  V.  Caldwell  (Eng.) 
(1863),  3  Best.  &  8.  82G. 

*^  Adler  v.  Miles  (1910),  69 
Misc.  (X.  Y.)  601;  126  X.  Y. 
Supp.  135.  After  the  making  of 
the  lease  a  city  ordinance  was 
enacted  prohibiting  tlie  use  of 
premises  such  as  the  demised 
premises  for  the  exhibition  of 
moving  pictures.  In  an  action 
on  the  lease  against  the  surety 
of  such  lease  it  was  held  that 
neither  the  original  lessee  nor  his 
surety  wore  obligated  to  pay  rent 
after  the  |xissage  of  the  ordinance, 
tlie  court  applying  the  rule  ex- 
pressed in  the  maxim  "lex  non 
cogit  ad  impossibilia." 



A  covenant  against  assignments  is  valid;  but  where 
there  have  been  numerous  assignees,  and  the  lessor  has 
accepted  rent  from  all,  this  would  amount  to  a  waiver 
on  the  part  of  the  lessor.  ^^ 

In  building  and  other  contracts  for  the  construction  of 
theatres,  it  is  well  to  define  with  every  degree  of  exactness 
what  the  theatre  building  is  to  be,  with  special  reference 
to  the  unique  elements  of  the  building,  such  as  the  pro- 
scenium, stage,  seats  and  so  on.^°  And  for  delay  in  such 
construction,  the  lessee  may,  in  an  action  for  the  rent, 
counterclaim  for  damages  sustained  by  him  by  reason  of 
such  delay,  ^^  or  the  lessee  is  entitled  to  maintain  an  action 

"  Nelson  Theatre  Co.  v.  Nelson 
(1913),  216  Mass.  30;  109  N.  E. 
926.  Where  defendant  had  leased 
a  theatre  to  a  tenant  with  the 
usual  covenants  against  assign- 
ments unless  consented  to  in 
writing,  and  where  the  tenant 
had  subsequently  assigned  with- 
out such  written  consent,  and 
there  had  been  subsequent  as- 
signments without  written  con- 
sents, and  the  defendant  had 
accepted  rent  from  all  these 
assignees:  Held,  that  he  would 
be  enjoined  from  ousting  the 
last  tenant,  as  his  acceptance  of 
the  rent  amounted  to  a  waiver 
of  that  clause  in  the  lease.  Held 
aUo  that  evidence  of  experts  on 
the  receipts  of  the  theatre  for  the 
past  year  as  a  basis  for  (-ompuf- 
iug  the  damages  was  admissible. 

^"Neher  v.  Viviani  (1910),  15 
N.  M.  460;  110  Pac.  695,  passes 
on  the  meaning  of  a  building  con- 
tract for  a  theatre,  and  holds  in 
particular  that  the  phrase  "a 
modern  thirty  thousand  dollar 
theatre  building"  includes  in 
addition  to  the  bare  building, 
the  usual  necessary  permanent 
equipment,  such  as  plumbing, 
heating  and  lighting  apparatus, 
seats,  curtains  and  scenery 
adapted  to  and  intended  for  use 
in  that  particular  building,  but 
not  the  piano,  furniture,  carpets, 

^^  New  York  Academy  of  Music 
V.  Ilackdt  (1858),  2  Hilt.  (X.  Y.) 
217.  Defendant  leased  plaintilT 
premises  for  two  months,  plain- 
tiff to  use  diligence  in  completing 
the     construction     of     building. 

TH i;ai'iu;  li;asks 


for  li(iui(la(('cl  damages  iiiidcr  the  contract,  where  the 
theatre  was  not  constructed  and  tlie  lessor  has  utterly 
failed  to  perform. ■'-' 

lessee  to  l)e  evicted  on  account 
of  noii-paymeiit  of  rent.  Pluiii- 
tifT  failetl  to  use  diligence  in 
conipletinfj;  the  huililinR  and  de- 
fendant failed  to  pay  rent.  Ac- 
tion was  for  rent.  Held  that 
defendant  might  counterclaim  for 
his  damages  l)y  reason  of  plain- 
tilT's  breach  in  failing  io  dili- 
gently comj)lcte  the  building; 
that  defendant  was  entitled  to 
be  allo\ve<l  in  abatement  of  the 
rent,  expenses  incurred  by  him 
in  advertising  the  performances 
aimounced  for  the  week  follow- 
ing the  eviction  but  was  not  en- 
titled to  set  o(T  damages  by 
rea.son  of  loss  of  tiie  services  of 
one  of  the  artists  who  contracted 
a  severe  cold  on  account  of  the 
unfinisheil  condition  of  the  build- 
ing as  the  gains  or  profits, 
which  the  defendant  might 
have  made  through  the  artist's 
performances,  were  too  specula- 
tive and  conjectural. 

''■^Shubirt  v.  Suiidheiin  (1910), 
13S  A.  D.  (X.  V.)  800;  123  N.  Y. 
Supp.  52!);  aff'd  203  X.  Y.  G3G; 
97  N.  E.  11 U;.  Where  a  written 
agreement  to  make  a  lease,  rental 
to    commence    when   a   buikling 

on  the  proiK-rty  wjus  completed, 
provided  that  the  les.see  was  to 
deposit  money  in  escrow  as 
security  for  the  rent,  and  the 
proposed  lessee,  having  the  neces- 
sary funds  failed  to  do  so  solely 
because  the  lessor  refused  to 
designate  a  tlepository  when  re- 
quested so  to  do,  the  lessee  may 
maintain  an  action  for  liquidated 
damages  provided  for  bj'  the 
agreement,  if  the  proposed  lessor 
put  it  out  of  his  power  to  fulfill 
the  contract  by  lea.sing  the  lands 
to  third  parties. 

It  was  held  that  the  provision 
for  liquidated  damages  was  en- 
forceable as  the  plaintifT  "might 
have  sustained  very  large  dam- 
ages which  could  not  be  proved 
with  sufficient  dcfiniteness  to 
warrant  a  recovery  thereof,  if  he 
relied  throughout  the  period  of 
the  construction  of  the  building 
on  obtaining  a  lease  of  this 
theatre,  and  then  did  not  receive 
it."  It  is  not  essential  to  the 
validity  of  a  liciuidated  damage 
clause  that  it  be  reciprocal. 
Interest  may  be  recoveral  on 
stipulated  damages. 

Fur  pcnattie-'i  for  dvfeclipc  slruc- 



Agreements  between  the  theatre  owner  and  adjoining 
property  owners  to  break  through  walls  for  the  purpose 
of  making  exits  and  vestibules  must  be  made  as  provided 
for  by  the  ordinances  of  the  local  authorities.  Otherwise 
the  contract  may  be  held  void  and  unenforcible,  and  a 
recovery  thereon  will  be  denied."  In  a  similar  suit 
brought  in  equity  where  the  theatre  owner  had  not  fully 
performed  under  his  contract,  relief  was  denied  him.^* 

tural  defects  see:  St.  James  Hall     the    protection    of    human    life. 
Co.  V.  London  Co.  Council  (Eng.)      Where   a   contract   on   its   face, 

(1901),2K.  B.  250. 

^^Hart  V.  Citij  Theatres  Co. 
(1911),  71  Misc.  (N.  Y.)  427;  128 
N.  Y.  Supp.  678;  reversed  156 
A.  D.  (N.  Y.)  673;  141  N.  Y. 
Supp.  386;  judgment  of  Appellate 
Division  reversed,  and  that  of 
trial  affirmed  in  215  N.  Y.  322; 
109  N.  E.  497.  A  contract 
between  the  owner  of  a  theatre 
and  the  owner  of  an  adjoining 
non-fireproof  building  to  cut 
through  the  wall  which  separated 
the  buildings,  for  an  exit  through 
the  latter  building,  was  held 
to  violate  the  building  code 
of  the  City  of  New  York  and 
the  owner  of  the  latter  building 
was  not  permitted  to  maintain 
an  action  to  recover  the  agreed 

"Courts  will  not  bo  astute  to 
sustain  contracts  when  the  effect 
will  be  to  weaken  the  ofTicacy  of 
law  and  regulations  designed  for 

whether  so  intended  by  the  par- 
ties or  not,  offends  against  stat- 
utes intended  to  promote  public 
safety,  the  courts  will  not  en- 
force it"  (excerpt  from  opinion  in 
215N.  Y.  322;  109  N.  E.  497). 

^'^  Keener  v.  Moslander  (1911), 
54  So.  (Ala.)  881.  Plaintilf 
owned  a  theatre  and  motion 
picture  house  in  Mobile.  De- 
fendant conducted  a  cand}'^  busi- 
ness in  the  rear  of  the  theatre — 
the  parties  contracted  to  give 
l)IaintifT  a  right  of  way  through 
defendant's  storeroom  into  the 
theatre,  after  which  plaintilT 
constructed  improvements  and 
made  an  entrance  and  vestibule 
through  the  storeroom.  Defend- 
ant then  erected  a  board  fence, 
cutting  oiT  the  entrance  and 
egress  of  patrons  and  this  suit 
for  injunction  was  brought.  Re- 
lief denied  upon  the  ground  tliat 
l)laintiir   liad    failed    to   perform 



WTierc  a  building  was  rented  for  the  purpose  of  heiriy; 
conducted  as  a  motion  j)icture  theatre,  the  landlord  could 
not  be  held  to  have  covenanted  to  have  allowed  the 
lessee  an  exit  from  the  rear  through  property  owned  by 
the  landlord  where  such  property  was  not  included  in  the 

It  is  not  always  an  easy  matter  to  determine  whether 
the  contract  between  the  parties  is  a  lease  or  a  license. 
In  a  late  case  the  question  was  fully  discussed,'*'^  but  the 
agreement  there  construed  was  rather  unusual.  In 
Leavilt  V.  Windsor  Co.,'''  it  was  held  that  where  in  addition 

liis  part  of  the  contract,  and  so 
could  not  obtain  relief  in  etiuity. 

o'- Kaiser  v.  ('iiibcrg  (1909),  130 
A.  D.  (X.  Y.)  254;  114  N.  Y. 
Siipp.  716. 

As  to  the  liability  of  the  oivner  of 
a  theatre  for  repairs  made  therein, 
vndcr  direction  of  the  lessee,  sec 
V(denli  V.  A'.  }'.  Theatre  Co. 
(1917),  X.  Y.  Law  Journal, 
April  Gth. 

">  Con^ey  Island  Co.  v.  M'lntyrc- 
Paxton  Co.  (1912),  200  Fed. 
{C.  C.  A.)  901.  An  agreement 
mndc  for  the  use  of  an  amuse- 
ment park  construed,  and  its 
tenure  dcfinod. 

Whetiicr  the  ri^lits  of  a  con- 
cessionaire amounted  to  a  license 
revocable  at  will  of  owner,  (puvre. 

"  Lcavitt  V.  Wind.'ior  Land  ^\: 
Inrestment  Co.  (1S9:?).  'A  Fed. 
(C.  C.  A.)  439.    Where  contract 

jJrovides  that  defendant  furnish 
buildin};  and  pay  certain  of  its 
expenses  and  the  plaintiff  give 
his  time  and  skill  in  carrying  on 
a  theatre  therein  and  to  act  as 
manager  of  such  theatre,  the 
tlefendant  to  receive  a  fixed  sum 
as  rent  and  in  addition  thereto 
one-half  of  the  net  profits;  the 
contract  also  providing  that  the  be  borne  equally  by  the 
jiartics  it  was  held  that  a  partner- 
ship had  been  created  though 
the  parties  had  referred  to  them- 
selves as  lessee  and  lessor.  See 
also  Section  02. 

On  the  question  of  the  dissolu- 
tion of  such  joint  venture  see: 
Shuberl  v.  Laughlin  (1907),  107 
X.  Y.  Supp.  708.  Plaintiff  con- 
tributed his  theatre  lease  and 
defendant  his  skill  as  a  manager 
and    booking-agent    in    a    joint 


to  rent  the  lessor  was  to  receive  a  stipulated  portion  of 
the  profits,  and  pay  certain  charges  and  to  share  in  the 
losses,  the  relation  was  that  of  partners  or  joint  venturers, 
and  not  that  of  lessor  and  lessee. 

The  lessee  may  sell  out  his  interest  in  the  theatre  to 
a  third  party;  and  in  such  a  contract  a  covenant  by  him 
not  to  engage  in  business  in  a  limited  territory  for  a 
limited  term  has  been  held  valid  and  binding.  And 
where,  in  \'iolation  of  such  covenant,  he  subsequently 
attempts  to  manage  a  theatre  witliin  the  prohibited 
area  during  the  prescribed  term,  he  will  be  en- 
joined. ^^ 

However,  injunction  is  not  a  remedy  usually  favored 
by  the  courts  with  respect  to  leases  and  their  breaches, 
for  to  do  so  ''would  be  to  compel  supervision  by  the  courts 
for  a  long  term  of  years  and  the  enforcement  of  negative 
covenants  which  would  in  effect  be  to  decree  specific 
performance."  ^^ 

Where  the  owner  of  the  theatre  had  contracted  first 
with  one  company,  then  with  another  company,  for  the 

venture.     In  an  action  brouglit  good   will   and    business   to   the 

by  one  of  the  partners  an  order  Metropolitan     Opera     Co.       He 

appointing    a    receiver    was    re-  covenanted    not    t(j    engage    in 

versed  on  the  ground  that  plain-  grand  opera  in  New  York  City 

tiff  was  not  asking  for  a  dissolu-  for  ten  years.     On  injunction  to 

tion,  and  that  the  proper  parties  restrain    (lef(>ndant    from    giving 

had  n(jt  been  brought  in.  grand    opera,    held,  that   such  a 

"  Metro politan  Opera  v.  Ham-  covenant  was  not  in  restraint  of 

merstein  (1014),  102  A.  D.  (N.  Y.)  trade,  and  was  reasonal)le. 

691;  147  N.  Y.  Supp.  ry.V2.     I)e-  '•^  Shuhrrt  v.  Woodirnrd  (1909), 

fcndant    Oscar    Ilanimerstcin    in  1(17  l''e(l.  (C  C.  A.)  47. 
1914  .sold    his    opera  properties, 


lease  of  his  theatre  for  tlie  siuiic  tcnii,  injunction  was 
likewise  refused/'" 

In  an  action  between  the  lessor  and  lessee  of  a  theatre 
who  had  agreed  to  di\'ide  the  profits  of  a  i)lay  to  ))e  pro- 
duced therein,  evidence  of  the  previous  receipts  of  the 
theatre,  of  the  popularity  of  the  production  in  places 
where  it  had  already  been  produced  and  the  probable 
amount  of  the  receipts  was  inadmissible."^ 

But  in  an  action  on  the  breach  of  a  lease  for  a  theatre, 
e\idence  of  experts  on  the  receipts  of  the  theatre  for  the 
past  year  as  a  basis  for  computing  the  damages  was  heltl 
admissible. "- 

Wliere  the  issue  involved  is  whether  the  performances 
given  were  in  compliance  with  the  contract,  declarations 
of  the  patrons  at  the  very  moment  they  are  leaving  the 
theatre,  of  their  reasons  for  so  doing,  are  a  part  of  the 
"res  gestic"  and  admissible."^ 

Wliere  a  defendant  was  sued  for  services  rendered  and 
the  question  was  whether  he  or  liis  landlord  was  lial)le 

<'o  Welly  V.  Jacobs   (1S9S),  171  '^^  Moss    v.    Tompkins    (1893), 

111.  G21;  49  N.  E.  723.    PlaintilT,  GO  Hun  (X.  Y.),  288;  23  X.  Y. 

manager  of  "The  Black  Crook"  Supp.  023;  aff'il  144  X.  Y.  659; 

entered  into  a  contract  with  de-  39  X.  K.  858.      In  this  connec- 

fendant  for  the  use  of  the  hitter's  tion,  see  Sections  21  anil  49. 

theatre.    Subsequently  defendant  »-  \ehon  Theatre  Co.  v.  Xehon 

entered    into    another    contract  (1913),  216  Mass.  30;  109  X.  K. 

with  a  rival  "The  Black  Crook"  926.     See   also:    lioscnwasser    v. 

company  for  the  use  of  his  theatre  Amusement  Enterprises  (1914),  8.S 

for   the   same   iKTiod.      PlaintitT  Misc.  (X.  Y.)  57;  1.50  X.  Y.  Supp. 

sued   for   injunction    to   restrain  561. 

such   use  of   the  theatre.     Held  ^Tharlei/y.  I'oltlwjT {l{m),l\S 

untenable.  Wis.  258;  95  X.  W.  124. 



therefor,  it  was  held  that  the  lease  between  himself  and 
the  landlord  was  admissible  in  evidence.^^  Where  the 
contract  was  evidenced  by  a  letter,  oral  testimony  show- 
ing a  quahfication  of  the  letter  was  held  inadmissible.^^ 

The  question  has  occasionally  arisen  whether  a  munic- 
ipality has  the  right  to  establish  and  maintain  a  place  of 

In  a  recent  Ohio  case  it  was  held  that  the  powers  to  be 
exercised  by  a  municipality  did  not  include  the  main- 
tenance of  a  motion  picture  theatre.^^ 

"  Miller  v.  Lawrence  (1895),  13 
Misc.  (N.  Y.)  130;  34  N.  Y. 
Supp.  161. 

^^  Zerralin  v.  Ditson  (1875), 
117  Mass.  553.  Plaintiff  sued 
for  services  rendered  in  conduct- 
ing of  "The  World's  Peace  Ju- 
bilee." Defendant  set  up  a 
special  contract  whereby  the 
services  were  rendered  upon  the 
understanding,  expressed  in  a 
letter ,  that  the  management  would 
not  be  responsible  in  case  the 
music  festival  resulted  in  a  loss. 

On  the  trial  defendants  offered 
the  letter  in  evidence  and  plain- 
tiff attempted  to  give  oral  testi- 
mony to  show  a  (lualification  of 
the  terms  of  the  letter,  which 
was  rejected  as  varying  the  ex- 
press terms  of  tli<'  letter. 

Held  on  appeal   that  the  oral 
evidence  was  propc^rly  rejected. 
'■^  Slate  V.  hynch  (May,  I'.H:})^ 

102  N.  E.  (Ohio)  670.  "Whether 
a  municipality  acquires  authority 
'to  exercise  all  the  powers  of 
local  self-government'  by  adopt- 
ing a  charter,  or  adopts  a  charter 
as  an  indispensable  mode  of 
exercising  the  authority,  the  pow- 
ers to  be  exercised,  being  govern- 
mental, do  not  authorize  taxa- 
tion to  establish  and  maintain 
moving  picture  theatres." 

The  decision  was  by  a  divided 
court.  A  strong  dissenting  opin- 
ion was  written  by  Judge  Wivnii- 

See  also:  Smith  v.  City  of  Raton 
(1914),  140  Pac.  109  (N.  M.) 
Under  the  powers  granted  to 
cities  and  towns  by  the  statute 
to  erect  all  needful  buildings  for 
their  use,  such  municipalities  are 
limited  to  the  erection  of  such 
needful  buildings  as  may  be  re- 
(juired    for    puljlic    uses    or    for 



In  California  a  dofision  was  rondorod  a  month  after 
the  opinion  in  tlic  Oliio  case  was  luindcd  down,  hoUUiif; 
that  a  municipal  corporation  uiifiht  have  the  power  to 
erect  and  maintain  a  i)la('o  of  \m\}\\r  aniusenuMit,  although 
it  could  not  contract  with  a  private  corporation  for  the 
erection  of  the  buildings  by  the  private  corporation  on 
land  belonging  to  the  municipality,  where  the  property 
was  to  be  managed  by  a  board  of  trustees,  a  majority  of 
which  were  not  to  be  selected  by  the  municipality.''" 
municipal  uses  and  purposes  as  pality  may  devote  money  for 
distinguished  from  private  or 
quasi  public  use.  Where  the 
paramount  purpose  is  to  use 
fiuch  building  for  theatrical  per- 
formances, "legislative  autlior- 
ity  is  lacking  in  this  state 
for  the  erection  of  such  buildings 
by  cities  and  towns."  See  also: 
Tncslccs,  dr.,  v.  Leu'/.s  (1012),  r>:j 
Fla.  G91. 

See  in  this  connection  Wordcti 
V.  New  Bedford  (1.S81),  131  Mass. 
23,  where  it  was  held  that  if 
the  building  was,  in  good  faith, 
erected  for  municii)al  purposes 
but  later  became  vacant,  the 
municipality  had  a  right  to  ix^r- 
mit  its  uses  for  a  i)rivate  enter- 
prise. See  also:  Bryant  v.  Logan 
(1904),  oG  W.  Va.  141;  49  S.  E. 

"'  I'Jgnn  v.  San  Francisco  (June, 
1913) i  Km  Cal.  h7(\-  1.33  Pac  294. 

The  court  cites  in  support  of 
the    proposition   that   a   numici- 

the  pleasure  and  amusement  of 
its  inhabitants:  IhdiUnrd  v.  Taun- 
ton (1886),  140  Mass.  467;  5 
N.  E.  157;  Denver  v.  Hallett 
(1905),  34  Col.  393;  83  Pac.  1066; 
Kingman  v.  Brockton  (1S91),  153  255;  26  N.  E.  998;  Spires 
V.  Los  Angeles  (1906),  150  Cal. 
64;  87  Pac.  1026;  Laird  v.  Pitts- 
burg (1903),  205  Pa.  St.  1;  54 
Atl.  324. 

The  court  cites  the  following 
cases  in  supp(jrt  of  the  proposi- 
tion that  the  public  use  of  pub- 
lic property  cannot  coexist  with 
private  management  and  control 
of  such  property.  California 
Academy  v.  San  Francisco  (1895), 
107  Cal.  334;  40  Pac.  426;  Home, 
etc.,  of  the  Inebriate  v.  San  Fran- 
cisco (1898),  119  Cal.  534;  51 
Pac.  9.50;  Fm  Societa,  etc.,  v.  San 
Francisco  (1!HK)).  131  Cal.  169; 
G.3  Pac.  174. 

See    also    in    this    connection: 


Lessees  of  theatres  are  customarily  required  to  deposit 
a  sum  of  money  with  their  lessors  as  security  for  the  due 
performance  of  all  of  the  provisions  of  the  lease. 

The  agreement  sometimes  provides  that  in  case  of  any 
default  by  the  lessee,  the  lessor  may  retain  the  moneys 
deposited  with  him  as  hquidated  damages.  The  com'ts 
will  not  be  bound  by  the  language  of  the  parties.  If 
the  result  is  to  penahze  the  lessee  the  courts  will  permit 
him  to  recover  back  his  deposit. 

In  Stimpson  v.  Minsker  Realty  Co.,  the  plaintiff  as 
receiver  brought  an  action  to  recover  back  $68,500,  part 
of  a  deposit  of  $72,000,  made  by  the  lessee  with  the  lessor 
under  a  lease  for  a  theatre.  In  view  of  the  fact  that 
the  amount  sought  to  be  retained  was  out  of  all  pro- 
portion to  the  damages  sustained  by  the  defendant  the 
court  was  constrained  to  treat  the  amount  as  a  penalty, 
notwithstanding  the  express  provision  of  the  lease  that 
the  lessor  was  entitled  to  retain  the  entire  amount  as 
liquidated  damages  in  the  event  of  a  breach.^^ 

An  action  to  recover  back  a  deposit  under  a  lease  may 
be  maintained  only  upon  the  expiration  of  the  period  of 

French  v.  Quincy  (1861),  3  Allen  loss  in  case  of  a  breach  as  viewed 

(Mass.),  9;  Stone  v.  Oconomowoc  at  the  time  the  lease  was  made. 

(1888),  71  Wis.   155;  36  N.  W.  In  the  event  of  a  breach  by  the 

829;  Jones  v.  Sanford  (1877),  66  lessee,   the   lessor   could   assume 

Me.  fyH!)]  Sugar  V.  Monroe  ilW2),  absolute  control  of  the  premises 

108  La.  677;  32  So.  961.  and  relet  them  for  its  own  ac- 

««  Stimpson   v.   Miasker  Realty  count.    It  is  hardly  credible  that 

Co.  (1917),177A.  D.  (N.  Y.).536.  it   would   fail   to   relet   them   to 

"We  also  think  that  the  S72,0()()  a(lvant:if!;(',  situated  as  thoy  were 

retained  by  the  h.'ssor  is  out  of  in   the   midst   of   numerous  and 

all    proportion    to   the   probable  theatre  going  population." 



the  lease,  unless  every  ccmtinKciicy  iiiidcr  wliich  the  de- 
fendant might  have  had  a  claim  for  damages  agaiast 
said  fund  has  been  exhausted.*^' 

The  lessee  may  maintain  an  action  for  breach  of  the 
contract  before  the  date  arrives  for  his  entry  upon  the 
premises,  where  he  is  informed  prior  thereto  by  the  lessior 
that  he  will  not  be  permitted  to  enter  upon  such  ])remises."° 

The  lessor,  when  suing  for  rent  on  a  guaranty,  is  not 
required  to  prove  that  the  defaulting  tenant  was  in 
actual  physical  possession  of  the  premises."' 

Section  80. — Theatre  a  nuisance. 
A  theatre  is  not  a  nuisance  per  se.''- 

But  under  certain 

•"''^  Hal  pern  v.  Manhattan  Ave. 
Theatre  Corp.  (191G),  173  A.  I). 
(N.  Y.)  610. 

■'o  Grail  V.  McVickar  (1874),  S 
Biss.  7,  10  Fed.  Cas.  No.  5,708. 
The  performances  were  to  com- 
mence Feb.  9tli.  It  wa.s  hcUl 
that  a  complete  cause  of  action 
accrued  prior  to  that  date  where 
the  ies.see  notified  the  lessor  tliat 
he  would  not  comply  with  the 
terms  of  tlic  agreement. 

7'  Wooils  V.  Broder  (1908),  11 3 
N.  Y.  Supp.  335. 

For  a  case  tvhere  a  bar  privilege 
was  leased  see:  Day  v.  Lun/i  Park 
(1912),  174  111.  App.  477.  A 
concession  granted  hy  the  de- 
fendant, an  amusement  park, 
for  a  bar  privilege,  which  con- 
tains    a     restrictive     covenant 

against  its  assignment  to  third 
I)arties,  is  personal  and  does  not, 
in  the  event  of  bankruptcy  of 
the  bar,  i)ass  to  the  trustee  in 

"  City  of  Indianapolis  v.  Miller 
(1907),  168  Ind.  285;  80  N.  E. 
()26.  "While  theatres  are  sub- 
ject to  the  police  ix)wer  of  the 
state  in  some  particulars,  yet 
it  can  by  no  means  be  said  that 
the  business  of  conducting  a 
playhouse  is  in  its  own  nature  a 
nuisiince.  1  Hawk.  P.  C.  693; 
Joyce,  Nuisances,  Section  115; 
Wood,  Nuisances,  3d  Ed.,  Sec- 
tion 52." 

City  of  Chicago  v.  Weber  (1910), 
246  III.  .304;  92  N.  E.  8.59.  "A 
city  may  declare  and  abate  nui- 
sances, but  a  theatre  Is  not  a 



conditions  it  may  easily  become  one,  as  when  large  crowds 
gather  in  front  and  extend  in  line,  boisterous  patrons 
congregate,  noises  issue  from  the  theatre,  and  the  like. 

The  most  frequent  complaint  is  that  great  crowds  are 
attracted  to  the  theatre,  and  extend  in  long  queues  down 
the  street,  obstructing  entrance  upon  and  egress  from 
adjacent  property,  and  interfering  with  the  free  use 

Where  tliis  is  a  common  occurrence,  it  unquestionably 
constitutes  a  nuisance,  and  may  be  abated  by  appropriate 
remedy.^^    This  is  true  not  only  of  a  theatre,  but  of  other 

nuisance  per  se,  and  a  declaration 
by  the  city  would  not  make  it  a 
nuisance  unless  it  was  such  in 
fact.  [Village  of  Des  Plaines  v. 
Poyer  (1888),  123  111.  348;  14 
N.  E.  677.]" 

To  Ihe  same  effect:  1  Hawkins 
P.  C.  (8th  VaI),  693;  Barber  v. 
Penleij  (Eng.)  (1893),  2  Ch.  447; 
Bellamy  v.  Wells  (Eng.)  (1890), 
63  L.  T.  N.  S.  635;  Ex  parte 
Whitxrell  (1893),  98  Cal.  73;  32 
Pac.  870. 

Holt,  C.  J.,  in  Betlerion's  Case 
(1695),  Holt  K.  B.  538;  5  Mod. 
142;  5  Kin.  625.  "It  hath  been 
holdnn  that  a  common  j)layhousG 
may  be  a  nuisance  if  it  draw  to- 
gether such  a  number  of  coaches 
or  people,  etc.,  as  to  prove 
generally  inconvenient  to  the 
phicps  ndjaceut.  And  it  seems 
that    playhouses,    having    been 

originally  instituted  with  a  laud- 
able design  of  recommending 
virtue  to  the  imitation  of  the 
people,  and  exposing  vice  and 
folly,  are  not  nuisances  in  their 
own  nature,  but  may  only  be- 
come such  by  accident." 

"  Lyons,  Son^  &  Co.  v.  Gulliver 
(Eng.)  (1913),  C.  A.  (1914),  ICh. 
631;  30  T.  L.  II.  75.  Defendant 
conducted  a  theatre.  A  large 
number  of  people  assembled  in 
and  about  the  theatre  before  each 
performance.  Long  lines  were 
formed  extending  for  some  dis- 
tance from  the  theatre,  five  per- 
sons abreast.  Plaintiff's  premises 
were  adjacent  to  of  de- 
fendant. Held  that  the  collec- 
tion of  such  crowds  constituted 
an  actionable  nuisance,  and  that 
the  failure  of  pohce  to  korp  jm-oikm* 
gaps  for  passage  of  public  and 



fomis  of  public  exhibition  ai 
or  line  need  not  necessarily 

rcRulute     the     crowds     was     no 

Dissent iiit;  o|)ini<iM  by  Philli- 
niore,  L.  J.,  that  every  trader 
liad  the  right  to  make  his  sliop 
as  attractive  as  jx)s.sible  and 
was  not  responsiljle  for  crowds 
who  collected  before  liis  shop; 
that  defendant  was  not  respon- 
sible for  collection  of  crowd  be- 
fore the  hour  at  which  they  were 
invited  to  attend;  that  it  was 
the  iluty  of  the  polkc  to  prevent 
obstruction  of  passageways;  tliat 
fonnation  of  a  line  or  queue  did 
not  constitute  an  actionable  nui- 

Barber  v.  Penley  (Eng.)  (1893), 
62  L.  J.  Ch.  Div.  623.  Plaintiff 
kept  a  lodging  house  adjacent  to 
defendant's  theatre.  She  sought 
to  enjoin  defendant,  claiming 
that  access  to  her  premises  was 
shut  off  by  the  great  crowds  wliich 
collected  in  front  of  the  theatre 
two  hours  before  it  opened. 

The  court  held  that  if  after 
the  opening  night  of  the  .show 
crowds  continued  to  gather  in 
front  of  defendant's  theatre,  that 
would  constitute  a  nuisance;  but 
as  it  appeared  from  the  affidavits 
that  the  police  had  taken  con- 
tnjl  and  no  nuisance  existed  at 

id  advertising."'    The  crowd 
be  noisy  or  unruly  or  boi.s- 

the  time  when  the  application 
for  the  injunction  wtus  made,  no 
injunction  was  neces.sary  and 
lu'nce  refused.  Defendant,  how- 
ever, was  required  to  pay  plain- 
tiff's costs  of  the  action.  To  the 
same  effect:  Wagstnff  v.  Edison 
Bell  (Eng.)  (1S93),  10  T.  L.  R.  80. 

Inchbuld  v.  Robimon  (Eng.) 
(1869),L.  R.  4Ch.  388.  A  tem- 
porary injunction  was  refused 
because  of  insufficient  evidence 
before  the  court,  although  it  a{>- 
proved  of  the  rule  of  law  "  tliat  the 
collecting  of  crowds  immediately 
before  a  residence,  so  as  to  block 
up  the  approaches  to  it,  might 
be  a  nui.sance,  and  that  if  the 
collection  of  those  crowds  was 
to  be  attributed  to  the  act  of  a 
])articular  individual,  that  in- 
dividual might  be  restrained  from 
the  commission  of  that  act." 
The  statement  of  the  law  by 
Lord  Cairn  as  above  quoted 
was  approved  on  apixial  by  Lord 
Justice  Selwj'n. 

Walker  v.  Brewster  (Eng.) 
(1867) ,  L.  R.  5  E(i.  2.-).  Held  that 
the  collection  of  large  crowds  in 
front  of  defendant's  anuiscment 
resort  constituted  a  nuisance  and 
should  be  enjoined, 

'*  Sfiaw's  Jcnclnj  Shop  v.  .V.  )'. 



terous;  its  mere  presence  in  sufficient  numbers  to  inter- 
fere with  the  adjoining  owner's  rights  constitutes  the 

Where  a  place  of  amusement  is  so  conducted  that 
noises  issue  therefrom  so  as  to  disturb  the  peace  and  rest 
of  the  neighbors,  it  becomes  a  nuisance,  whether  such 
noises  are  caused  by  the  patrons  or  by  the  performers^^ 

Herald  (1915),  170  A.  D.  (N.  Y.) 
504;  156  N.  Y.  Supp.  651.  The 
maintenance  of  an  automatic 
baseball  playograph  which  caused 
the  collection  of  thousands  of 
spectators  and  impeded  traffic 
to  the  extent  of  requiring  the 
presence  of  a  large  number  of 
police  officers  and  interfered  with 
the  ingress  to  and  egress  from 
plaintiff's  store  constituted  a  nui- 
sance, for  which  plaintiff  was 
entitled  to  damages,  and  if  not 
abated  at  time  of  trial,  to  an 

Jaques  v.  Natl.  Exhibit  Co. 
(1884),  15  Abb.  N.  C.  (N.  Y.) 
250.  It  was  held  that  a  puppet 
show  in  a  window  for  advertising 
purposes,  which  drew  together 
crowds  of  persons,  was  a  nuisance. 
Bellamy  x.WcU.siKnfjr,)  (1S90), 
63  L.  T.  N.  S.  Chir,.  The  assem- 
blage of  large  groups  of  persons 
before  defendant's  club  wlioroin 
boxing  exhibitions  wen-  cdii- 
ducted  was  licld  to  be  a  nuisance. 
Rex  V.  Carlile  (Eng.)  (bSlil),  0 

C.  and  P.  636.  Defendant  ex- 
hibited some  effigies  in  his  win- 
dow, which  caused  the  collection 
of  large  crowds  in  front  of  the 
window  and  obstructed  passage 
along  the  street.  Held  a  nuisance. 
Rex  V.  Moore  (Eng.)  (1832),  3 
B.  &  Ad.  184.  The  collection  of  a 
large  number  of  persons  on  the 
road  leading  to  defendant's  shoot- 
ing grounds  was  held  to  be  a 
nuisance.  The  court  said:  "If 
a  person  collects  together  a  crowd 
of  people  to  the  annoyance  of  his 
neighbors,  that  is  a  nuisance  for 
which  he  is  answerable." 

"  Cluncy  V.  Lee  Wai  (1896),  10 
Hawaii,  319.  The  playing  of 
instruments  at  defendant's  thea- 
tre from  which  such  noises  ema- 
nated as  interfered  with  plain- 
tiff's slumber  was  enjoined. 

.Sec  also:  Penrose  v.  Nixon 
(1891),  140  Pa.  St.  45;  21  Atl. 
364,  where  injunction  was  re- 
fused to  restrain  noises  caused 
by  tlie  shifting  of  s(;enery. 

Village  of  Dea  IHuims  v.  Foijer 



The  close  proximity  of  the  theatre  to  a  church  has  also 
been  held  to  constitute  a  nuisanceJ^  So,  to(^,  where 
l)atr()ns  wore  continually  trespassing  on  the  adjacent 
owner's  j)roperty.^^ 

(ISSN),  12;i  III.  HAS;  14  X.  E.  677. 
Where  the  noise  and  commotion 
of  a  public  resort  reaches  such 

II  point  as  to  interfere  with  the 
rights  of  the  public,  they  will 
constitute  a  nuisance. 

CommouivcaUh  v.  Cincinnati, 
etc.,  Rd.  Co.  (1908),  139  Ky.  429; 
112  S.  W.  613.  An  indictment 
charging  that  defendant  per- 
mitted the  congregation  of  large 
numbers  of  i)crsons  at  its  public 
resort  on  and  near  a  public  high- 
way, who  made  loud  noises,  and 
otherwise  misbeiiaved  themselves 
to  the  discomfort  and  annoyance 
of  the  inhabitants  residing  in  the 
vicinity,  sufficiently  alleged  acts 
constituting  a  nuisance. 

See  also:  Cramer  v.  Klein 
(1908),  127  A.  D.  (N.  Y.)   146; 

III  N.  Y.  Supi).  469;  Jung  Brew- 
ing Co.  V.  Conintonirealtk  (li)06), 
123  Ky.  507;  96  S.  W.  595;  Lerin 
V.  Coudmn  (1906),  191  Mass. 
341;  77  N.  E.  718;  Palestine  v. 
Minor  (1905),  86  S.  W.  (Ky.)  695; 
Toim  of  Davis  v.  Doris  (1S95), 
40  W.  Va.  464;  215  8.  K.  90(); 
Schleuter  v.  Billingheiiner,  9  Ohio 
Dec.  (llepr.)  513;  Paris  v.  Coni- 

vionieenlth,  4  Ky.  Law  Rep.  597; 
Jenkin.'i  v.  Jncksun  (Eng.)  (1888), 
40  Ch.  D.  71. 

^»  Nahaer  v.  City  of  Chicago 
(1915),  271  111.  288;  HI  X.  E. 
119.  Held  that  a  motion  picture 
theatre  within  200  feet  of  a 
church  constituted  a  nuisance. 

Hamlin  v.  Bender  (1915),  92 
Misc.  (X.  Y.)  16;  155  X.  Y. 
Supp.  963;  affd  173  A.  D.  (X.  Y.) 
996.  Where  large  crowds  con- 
gregate about  the  entrance  of  a 
moving  picture  theatre  to  such 
an  extent  as  to  cause  at  times 
congestion  of  travel  in  front  of 
the  building  and  where  those 
attending  a  church  in  the  im- 
mediate vicinit}'  of  the  theatre 
arc  called  ujmju  to  and  re- 
pass it,  an  injunction  may  be 
granted  restraining  the  operation 
of  the  theatre,  on  .Sundays,  as  a 

^  Cronin  v.  Bloewecke  (1899), 
58  X.  J.  E(i.  313;  6:3  At).  605. 
Defendants  conducted  bjisel)all 
games  at  their  park.  A  number  of 
balls  fell  u|K)n  plaintilT's  premis»>s 
and  persons  tre^spa.ssed  thereon 
to  recover  the  balls.     Injunction 


Section  81. — Franchise  and  booking  agreements. 

Many  plays  are  booked  tlu'ougli  so-called  "booking 
circuits."  The  chcuit  company  makes  agreements  with 
the  owners  of  theatres,  whereby  it  agrees  to  furnish  them 
with  companies  of  players  together  with  the  plays  cus- 
tomarily produced  at  such  theatres,  and  the  theatre 
proprietors  agree  to  pay  to  the  performing  companies  a 
specified  compensation,  which  is  usually  a  percentage  of 
the  gross  receipts.    The  theatres  are  known  as  the  circuit. 

The  circuit  company  thereupon  enters  into 'agreements 
with  managers  of  performing  companies,  the  agreements 
being  kno\\Ti  as  "franchises,"  in  which  it  agrees  to  secure 
bookings  for  the  managers'  productions. 

The  circuit  company  is  the  agent  of  the  theatre  owner 
for  whom  it  arranges  bookings.'^  This  becomes  important 
on  the  question  of  suit.  WTiere  the  owner  of  the  theatre 
has  breached  the  terms  of  the  contract  and  has  refused 

issued  restraining  defendants  from  distinct  from  that  suffered  by- 
permitting  ball  games  to  be  con-  him  in  common  with  the  pubUc. 
ducted  in  such  manner  as  to  ''» hilerslate  Amusement  Co.  v. 
annoy  and  injure  plaintiff,  either  Albert  (1913),  161  S.  W.  (Tenn.) 
because  of  the  driving  or  dropping  488.  Plaintiff  operated  a  book- 
of  balls  upon  the  premises  or  by  ing  agency  in  Chicago.  Defend- 
ixirmitting  the  collection  of  idle  ant  operated  a  theatre  in  Ten- 
or disorderly  persons  in  the  nessee.  Plaintiff  booked  certain 
•  streets.  acts  for  defendant  for  which  the 
The  rule  of  law  is  that  Courts  latter  became  indebted  to  it  in 
of  iMiuity  will  restrain  an  existing  a  sum  of  money, 
or  threatened  nuisance  at  the  Held  tliat  jilaintiff  was  the 
suit  of  the  people  by  their  attor-  agent  of  the  def(Mulant  to  book 
ncy  general,  or  of  a  private  in-  these  acts  for  which  it  was  to 
dividual  who  sustains  spoci.-d  receive  SIO  a  week  and  5%  of  the 
and    i)eculiar    injury    therefrom  amounts  paid  to  the  troupes. 


to  pay  the  manager  of  the  company  whose  play  has  been 
booked  for  his  theatre,  he  may  be  directly  sued  by  the 
manager.  There  is  privity  of  contract  between  the  par- 
ties, and  the  manager  may  allege  the  making  of  the 
contract,  through  the  medium  of  the  circuit  company,  al- 
though in  fact  one  contract  was  made  between  the  man- 
ager and  the  circuit  company,  and  another  between  the 
circuit  company  and  the  theatre  owner. 

A  burlestiue  booking  circuit  which  opened  a  theatre  in 
I)roximity  to  the  plaintiff's  theatre  and  thereby  forced  it 
to  shut  down,  was  held  not  guilty  of  conspiracy,  since  it 
had  done  notliing  illegal,  and  its  motives  were  imma- 

A  booking  agent  will  not  be  compelled  to  specifically 
])erform  its  contract  and  book  through  its  offices  acts 
for  a  theatre  proprietor,  as  that  would  reciuire  the  con- 
tinuous supervision  of  the  court,  and  a  court  of  equity 
will  not  assume  such  a  duty.^° 

^^  Rosenmu  v.   Empire  Circuit  motive  which  induced  such  act 

(1909),  131  A.  D.  (X.  Y.)  429;  was  nmlicious." 

115  N.  Y.  Supp.  511.    Action  by  *^  Hammerslein  v.  United  Book- 

})luinti(T  as  Receiver  of  the  Court  ing   Offices    (1915),   N.   Y.    Law 

Street  Theatre  for  a  conspiracy  Journal,     Nov.     4.       Defendant 

to  bring  about  tlie  ruin  of  that  had   entered   into  an  agreement 

theatre  by  the  defendant  which  with   a   number   of   owners   and 

controlled   a   burlesque   booking  managers  of  vaudeville  theatres 

circuit.  whereby    defendant    agreed    to 

Held   untenal)le   as   defendant  act    as    booking    agent    for    the 

had    merely    done    lawfully    the  managers     and     the     managers 

things  which  it  had  a  right  to  do.  agreeil  to  book  through  defend- 

"If  the  means  employwl  to  do  ant  exclusively.     The  managers 

a  certain  act  are  legal  and  lawful,  agnn'd     with     each     other     that 

it  is  of  no  consequence  that  the  during  the  term  of  the  agreement 



Booking  agents  and  circuit  companies  have  been  held 
not  to  be  engaged  in  interstate  commerce.^ ^ 

A  booking  agency  or  circuit  company  contract  must  be 
construed  in  the  light  of  reasonableness,  so  that  in  a  con- 
tract in  which  territory  was  to  be  set  aside  before  a  day 
certain,  it  was  held  that  time  was  not  of  the  essence, 
and  the  defendant  could  later  set  aside  such  territory  or 

Section  82. — Benefit  performances — private  exhibitions. 

It  is  a  common  practice  for  clubs,  lodges  and  societies 

to  arrange  with  theatre  owners  for  benefit  performances, 

the  proceeds  of  which  are  as  a  rule  donated  to  some  worthy 

they  would  not  become  directly 
or  indirectly  interested  in  the 
operation  of  any  vaudeville  thea- 
tre other  than  their  own  in  the 
City  of  New  York  except  as 
])rovided  in  the  agreement.  Plain- 
tiff became  in  effect  a  party  to 
the  above  agreement  by  a  subse- 
quent agreement  made  between 
itself  and  other  parties  and  the 
defendant.  Plaintiff  in  violation 
of  his  agreement  became  in- 
terested in  another  theatre  and 
defendant  thereupon  refused  to 
book  any  acts  for  phiintiff's 
theatre.  A  motion  was  made  to 
compel  defendant  to  specifically 
perform,  to  wit:  to  book  acts  for 
plaintiff.  Th(!  motion  was  de- 
nied, among  other   reasons,  be- 

cause the  court  would  not  assume 
the  duty  of  requiring  the  doing 
of  acts  which  would  require  its 
continuous  supervision. 

^^  Interstate  Amusement  Co.  v. 
Albert  (1913),  161  S.  W.  (Tenn.) 

^■^  Perky  v.  Shvbert  (1907),  121 
A.  D.  (N.  Y.)  786;  106  N.  Y. 
Supp.  593.  Where  tlie  parties, 
theatrical  managers,  contracted 
for  a  certain  territory  for  book- 
ings, defendants  to  set  aside  a 
certain  territory  or  route  prior 
to  May  1st  of  each  year,  it  was 
held  nevertheless  that  time  was 
not  of  the  essence  of  the  con- 
tract, and  that  there  was  no 
evidence  of  a  breach. 


charity.  As  those  perfonnaiices  are  <jfteii  licld  un  Sunday, 
the  (juestioii  arises  whetlier,  in  states  wliere  Sunday  j)or- 
fonnances  are  prohibited,  these  classes  of  performances 
arc  exempt.  In  some  of  the  states  performances  or  ex- 
hibitions for  charitable  or  benevolent  purposes  are  ex- 
pressly i)ermittcd  to  be  given  on  Sunday. 

Tn  Kodblc  v.  Woods,^^  an  outdoor  celebration,  con- 
sisting of  foot-races,  bicycle  and  motorcycle  races  was 
stoi)i)cd  by  the  authorities.  In  proceedings  brought  to 
restrain  the  Police  and  Sheriff,  the  court  held  that  the 
fact  that  i)roceeds  were  to  be  given  to  charity  did  not 
give  th(>  promoters  the  right  to  violate  the  law.  But  this 
was  clearly  an  ''outdoor"  sport  or  exhil)iti<)n,  and  there 
was  no  exemption  in  the  New  York  statutes  for  that  kind 
of  entertainment. 

A  performance  of  that  nature  is  not  taken  out  of  the 
statute  l)ecause  the  expenses  of  the  are  paid.  The 
test  is  whether  the  proceeds  derived  from  the  sale  of 
tickets  are  devoted  to  charity."' 

"\Miere  a  benefit  performance  had  been  scheduled  to 
take  place,  and  there  was  a  breach  by  the  theatre  owner, 
the  association  giving  the  performance  could  not  reco\er 
where  it  had  suffered  no  damage. '^■'' 

*^  Kodblc  V.  Woods  (1910),  l.V.)  benefit  performance  at  its  theatre. 

N.  Y.  Supj).  704.  SiihscMjuently,  and  after  plaintilT 

^H'omuiotnviidlk    v.    Alcxaiukr  liad    sold    many    of    the    tickets, 

(1001),  ISo  Mass.  551;  70  N.  IC.  defendant  rescinded  the  contract. 

1017.  Held,    that    .since    plaintiff    hatl 

^^Jackcl  V.  Nixon  &  Zimmcr-  refunded  all  the  moneys  for  the 

man  (liK)7),  ,33  Pa.  Sup.  Ct.  30.  tickets    so    purchased    of    it,    it 

PhiintilT,     an     association,     con-  could  not  recover, 
tracted    with    defendant    for    a 

260        .  THE   LAW   OF  MOTION   PICTURES 

"Proceeds"  derived  from  a  benefit  or  charitable  per- 
formance have  been  defined  as  the  balance  remaining 
after  deductions  for  the  expenses  necessarily  incm-red  for 
the  giving  of  such  a  performance.^^ 

Unless  specifically  exempted  by  statute,  a  charitable 
organization  must  secure  a  theatrical  Ucense  and  pay 
the  required  tax  before  giving  pubhc  exhibitions.^^ 

It  is  not  a  pubHc  exhibition  for  a  motion  picture  com- 
pany to  exhibit  its  reels  to  dealers  by  running  them  off  for 
the  purpose  of  renting  or  leasing  the  same.^^ 

Section  83. — Interstate  commerce. 

In  New  York  it  has  been  squarely  held  that  the  theat- 
rical business  does  not  constitute  "interstate  commerce" 
within  the  meaning  of  the  ^ '  Sherman  anti-trust  law. ' '  The 
fact  that  theatrical  companies  travelled  from  state  to 

^  Commomvealth   v.    Alexander  ^M.  G.  v.  Vitagraph  Co.,  Ltd. 

(1904),  185  Muss.  553;  70  N.  E.  (Eng.)  (1915),  1  Ch.  206;  13  L.  G. 

1017.  R.  148;  84  L.  J.   (Ch.)   142;  31 

"CiV//   of  Mobile   V.    Kicman  T.  L.  R.  70;  112  L.  T.  245;  79 

(1910),  54  So.  (Ala.)  102.  J.  P.  150.    The  term  " E.thibUion" 

Sfwlley  V.  Bethell  (Eng.)  in  Section  1  of  the  Cinemato- 
(1883),  12  Q.  B.  1).  11.  Defend-  graph  Act  1909,  refers  to  the 
ant  who  had  a  private  house  cxliibition  of  cincinatograph  pic- 
fitted  up  as  a  private  theatre  tures  in  phices  of  \)uh\u;  enter- 
turned  it  over  to  another  who  tainmcnt,  and  does  not  inchide  a 
advertised  performances  therein  case  where  dealers  in  the  exercise 
for  the  benefit  of  a  School  for  of  tlieir  trade  of  selling  or  renting 
Dramatic  Art.  Ildd  that  de-  films  merely  show  tiieir  lilms  l)y 
fendant  was  guilty  irrosi)ective  ruiming  them  tlirough  their  ma- 
of  the  fact  that  the  performance  chines  in  the  ])rescncc  of  one  or 
was  for  charity.  more  customers. 

Sec  also  Section  100. 


state  giving  grand  opera  made  no  difference  in  tliis  re- 
spect.**'' But  iu  lUincns  the  court  has  intimated  that  the 
sending  of  llieatrical  troupes  from  one  state  to  another 
is  interstate  commerce.^" 

The  business  of  a  booking  agent  has  been  held  not  to 
constitute  interstate  commerce,  even  where  it  booked 
acts  in  various  states  throughout  the  Union.^' 

And  the  making  of  contracts  in  one  state  for  the  pro- 
duction of  plays  in  another  has  been  held  not  to  violate 
a  statute  forbidding  foreign  corporations  from  doing 
business  in  the  latter  state  without  first  complying  witli 
the  statutory  requirements.^- 

In  United  States  v.  Motion  Picture  Patents  Co.,  how- 
ever, it  was  held  that  the  shipment  f)f  motion  picture 
films  from  one  state  to  another  constituted  interstate 

Section  84. — Bankruptcy. 

It  has  been  held  that  a  distributor  of  motion  picture 
films  is  not  a  "trader"  within  the  m(>aning  of  the  Bank- 

*^  Melropolitan  Opera  v.  Ham-  ''■  A.  II.  Woudx  Produclion  Co. 

imrstcin  (l'.)14),  UVI  A.  D.  (N.  Y.)  v.  Chicago,  Cinnnnati,  dc,  R.  R., 

fiOl;  147  N.  Y.  Supp.  532.  147   111.   App.   'iGH.     See  in   this 

«"  Woods  Production  Co.  v.  Chi-  connection:  Inlcmlale  Ammeineid 

cago,   He,  R.  R.  (1909),  147   111.  Co.  v.  AlbeH  (1913),  Kil  S.  W. 

Ai)p.  508.  (Tenn.)  488. 

»'  Interstate  Aimixement  Co.  v.  »'  United  States  v.  Motion  Pic- 

Alhert  (191.3),  IGl  S.  W.  (Tenn.)  litre     Patents    Co.    "(UJlo),     2-2.-) 

48S.     Here   plaintitT  oiM-ratiHl   u  Fed.    (D.    C.)     800.      See    Sec- 

bookinR  iisencv  in  ("hicjiRo  and  tion    134,  for  discussion  of  this 

(lefcndnnt   <ipcrat<'d  a  theatre  in  cu-se. 



ruptcy  Act,  and  may  not  avail  itself  of  the  provisions  of 
that  Act.^"^  These  decisions  follow  the  principle  laid  down 
in  the  case  In  re  Oriental  Society, ^^  where  it  was  held 

9^  In  re  Imperial  Film  Exchange 
(1912),  198  Fed.  (C.  C.  A.)  80. 
"It  seems  too  clear  for  argument 
that  a  corporation  which  leases 
moving  picture  films  is  not  en- 
gaged in  trading  as  above  de- 

The  petition  alleged: 

"That  the  said  Imperial  Film 
Exchange,  for  the  greater  portion 
of  six  months  preceding  the  date 
of  the  filing  of  this  petition,  has 
been  engaged  in  the  business  of 
selUng  and  leasing  moving  pic- 
tures, films,  machines  and  ac- 
cessories for  the  exhibition  of 
moving  pictures,  and  has  its 
principal  place  of  business  at 
No.  44  West  Twenty-lMghth 
Street,  borough  of  Manhattan, 
City  of  New  York." 

The  court  said : 

"Assuming  that  the  business  of 
seUing  moving  picture  films,  ma- 
chines, and  accessories  is  within 
the  act,  the  difnculty  is  that  it  is 
not  alleged  that  the  principal 
business  of  the  corporation  was 
such  selling.  It  was  not  enough 
to  allege  that  a  part  of  the  busi- 
ness of  the  corporation  was  within 
the  statute.  .  .  .  Taking  the  pe- 

tition as  it  stands,  there  is  noth- 
ing to  negative  what  appears  to 
have  been  the  fact  that  the  prin- 
cipal business  of  the  corporation 
was  leasing  picture  films,  although 
occasional  sales  were  made." 

95  7n  re  Oriental  Society  (1900), 
104  Fed.  (D.  C.)  975.  "A  cor- 
poration engaged  in  giving  theat- 
rical performances  is,  of  course, 
not  engaged  in  manufacturing, 
printing  or  publishing.  In  my 
opinion,  also,  it  is  clearly  not 
trading,  or  following  mercantile 
pursuits,  in  the  ordinary  meaning 
of  these  words.  A  trader  or  mer- 
chant is  one  who  either  sells, 
or  buys  and  sells,  and  a  theatrical 
society  does  neither.  It  gives 
performances  of  one  kind  or  an- 
other, to  which  the  public  are 
attracted  by  the  skill  of  the  per- 
formers. But  the  skill  is  not 
sold;  it  is  merely  exhil)ited  for 
hire.  The  fact  that  the  society 
nuist  buy  scenery  and  stage  ap- 
pliances and  furniture,  which  it 
may  aftcM'wanls  s(>ll  again,  is  of 
no  imporlanco.  This  is  a  ni(M-e 
incident,  and  not  the  principal 
business  of  the  bankrupt." 



that  a  corporation  cngaf^cd  in  giving  theatrical  per- 
formances could  not  avail  itself  of  the  benefits  of  the 
Bankruptcy  Act. 

It  has,  however,  been  held  in  a  state  court,  that  one 
conducting  a  motion  picture  business  was  engaged  in  a 
"trade"  or  "profession"  and  entitled  to  certain  exemp- 
tions thereby  on  execution  and  le\y.^'' 

.Vn  actor  is  a  wage-earner,  and  as  such  entitled  to  a 
special  preference  for  salary  due  him  from  his  bankrujjt 

A  license  agreement  is  personal  and  does  not  pass  to 
the  trustee  in  bankruptcy .^^ 

^Campbell  v.  Ilonakers  (1914), 
166  S.  W.  (Tex.)  74.  The  ques- 
tion wjus  wlicther  the  property 
used  by  appolhuit  in  conducting 
his  motion  picture  business  was 
exempt  from  levy  and  sale  under 
execution,  as  "tools,  apparatus 
and  books  belonging  to  any  trade 
or  profession."  Held  that  an 
Edison  machine  and  an  I'xiison 
Perfecting  Kinetoscojic  Manu- 
facturing sale  machine  and  metal 
machine  outfit  were  exempt. 
But  the  chairs  u.sed  in  the  theatre 
wer(>  nut  exempt.  Held  further 
that  a  |M'rson  engaged  in  the  mo- 
tion picture  industry  was  follow- 
ing a  trade. 

But  see:  Speakc  v.  Poiccll  (Eng.) 
(1873),  L.  R.  9  Ex.  25,  where  it 
was  held  that  the  occu|)ation  of 
an  actor  was  not  a  "  traile." 

•^  Winter  German  Opera,  Ltd. 
(Eng.)  (1907),  23  T.  L.  R.  G62. 
Held  that  under  the  Preferential 
Payments  and  Bankruptcy  .\ct 
of  1888,  the  artists  of  the  com- 
pany were  considered  "servants" 
and  that  their  salaries  up  to  £.^0 
W(juld  have  preferences  in  the 
estate.  Sec  Thomas  v. 
Gatli  (Eng.)  (1906),  Times,  Feb. 
1  and  2. 

'■^  In  re  Kay-Tee  Film  Exchange 
(1911),  193  Fed.  (D.  C.)  140. 
The  Lubin  Co.  had  lea.-^tnl  a 
number  of  films  to  the  bankrupt 
more  than  four  months  prior  to 
the  adjudication.  On  ix'tition 
for  reclamation  the  referee  held 
that  the  trustee  had  no  title  in 
such  films  and  decreed  that  they 
be  given  up  to  the  petitioners 
(at  p.  149). 



Section  85. — Libel. 

To  accuse  a  theatrical  manager  of  fraud,  insolvency 
and  embezzlement  was  held  a  Hbel.^^  And  to  include 
statements  in  a  newspaper  that  a  theatrical  production 
was  immoral  when  not  so  in  fact  was  also  held  to  be 
Ubelous.^"°    A  statement  that  a  theatrical  manager  had 

"So  far  as  this  proceeding  is 
concerned  it  is  one  to  recover  the 
identical  property  belonging  to 
the  petitioner  and  traced  into 
the  hands  of  the  trustee  in  bank- 
ruptcy. The  petitioner  never 
intended  to  sell,  and  had  no  right 
to  sell,  and  did  not  sell  s^id 
moving  pictures  or  reels  to  the 

Day  V.  Luna  Park  (1912),  174 
111.  App.  477.  A  bar  concession 
in  an  amusement  park  is  personal 
and  does  ncjt  pass  to  the  trustee 
in  bankruptcy.  For  detailed 
discussion,  sec  Section  14. 

99  Fn/  V.  Bennett  (1863),  28 
N.  Y.  324.  A  charge  that  a 
theatrical  manager  has  designed 
to  cheat  and  defraud  the  sub- 
scribers to  an  opera  by  a  fraudu- 
lent discontinuance  of  perform- 
ances, that  he  had  become 
insolvent  at  Pliihidclpliia  and 
was  about  to  becoiuf!  insolvent  at 
New  York,  tliat  he  had  mis- 
appropriaUid  tlie  moneys  received 
from  subscribers,  and  tluit  gam- 
blers    patronized     iJcrfDrmunces 

given  by  him  was  held  to  con- 
stitute a  libel. 

See  also:  Gott  v.  Pulsifer  (1877), 
122  Mass.  235.  The  plaintiff 
brought  this  action  because  of 
statements  made  in  defendant's 
newspaper  concerning  a  scientific 
curiosity   belonging   to   plaintiff. 

Gray,  C.  J.,  said:  "This  action 
is  not  for  a  libel  upon  the  plain- 
tiff, but  for  publisliing  a  false 
and  malicious  statement  con- 
cerning his  property,  and  could 
not  be  supported  without  an 
allegation  and  proof  of  special 
damage.  The  special  damage 
alleged  was  the  loss  of  the  sale 
of  the  plaintiff's  statue  to  Palmer. 
Evidence  of  the  value  of  the 
statue  as  a  scientific  curiosity 
was  therefore  rightly  rejected  as 

100  Merivale  v.  Carson  (Eng.) 
(1888),  L.  R.  20  Q.  H.  Div.  27r); 
58  L.  T.  N.  S.  331. 

Fay  v.  Harrington  (1900),  17() 
Muss.  270;  57  N.  E.  369.  Plain- 
tiffs, proprietors  of  a  th(>atre, 
brouglit    this    action    for    libel 



forced  out  one  of  his  copartners  and  had,  together  with 
the  other  surviving  partner,  appropriated  the  entire  profit 
of  the  brains  and  capital  of  their  associate  to  themselves 
constituted  an  actionable  libel.'"' 

When  the  articles  charged  plaintiffs  with  discriminating 
unfairly  against  the  Irish  population,  in  their  business  of 
giving  entertainments,  they  were  held  not  actionable  with- 
out proof  of  special  damage. '"- 

A  motion  picture  company  w^as  h(?ld  to  libel  the  ])lain- 
tiff,  the  owner  of  a  shop,  where  a  "White  Slav'e"  picture 

against  the  publisher  of  a  news- 
paper. //(■/'/  that  where  the  ar- 
ticles eliarffed  |)hiiiitifTs  with  giv- 
ing!; imleceiit  exliil)iti«)iis,  evideiice 
showing  tliat  the  costumes  worn 
by  the  dancers  at  the  performance 
which  (Icfeiulant  a.ssertetl  was 
indecent,  were  siinihir  in  style 
to  those  usually  worn  by  young 
women  dancing  on  the  stage  at 
]iublic  performances,  was  properly 
exclude*  1. 

»""  Khur  V.  \nr  York  Presft  Co. 
(1010),  VM  \.  1).  (X.  Y.)  GSG; 
122  X.  V.  Supi).  437.  Plaintiff 
contended  that  defendant  jjub- 
lished  false  statements  concern- 
ing him  because  of  the  with- 
drawal by  him  of  advertisements 
of  his  theatrical  productions. 
Th(^  article  contained  a  st^vto- 
nient  to  tlie  effect  that  plaintiff 
had    forced   out   of   his   business 

one  of  hik  co-partners  and  that 
he  and  the  other  rerfiaining 
partner  had  seized  "the  whole 
profits  of  the  l)rains  and  capital 
of  their  associate  for  tliemselves" 
— Held  libelous  per  .se. 

The  court  said:  "Although 
this  article  does  not  directly  re- 
late to  acts  of  the  plaintiff  in  his 
business  and  profession  of  pro- 
ducing and  l)<H)king  plays,  it 
does  indirectly  and  would  nat- 
urally, if  believeil,  affect  him  in 
his  business  and  profession  which 
nece.s.sarily  involves  the  making 
of  contracts,  for  most  people  dis- 
like to  deal  with  tnen  who  woulil 
be  alert  to  take  advantage  of  them 
and  are  known  t«t  have  bn'ii 
guilty  of  sharp  practices." 

'"■'Fay  V.  Harrington  (1900), 
17G  Mass.  270;  57  N.  E.  3G5). 



had  been  taken  purporting  to  hold  the  shop  out  as  a 
rendezvous  for  questionable  characters.  ^°^ 

An  interesting  discussion  as  to  the  limits  a  newspaper 
may  go  in  criticizing  a  production  or  its  management  is 
contained  in  Philipp  Co.  v.  New  York  Staats-Zeitung}^'^ 

Where  a  man  on  trial  for  murder  sought  to  enjoin  the 
production  of  a  play  upon  the  ground  that  it  prevented 
the  conducting  of  an  impartial  trial  and  interfered  with 
the  administration  of  justice,  the  court  refused  to  grant 
equitable  relief,  holding  that  his  remedy,  if  any,  was  at 
law  for  libel.  ^°'' 

i^^  Merle  v.  Sociological  Re- 
search Film  Corp.  (1915),  1G6 
A.  D.  (N.  Y.)  376;  152  N.  Y. 
Supp.  829. 

"■•  Philipp  Co.  V.  New  York 
Staats-Zeitung  (1914),  165  A.  D. 
(N.  Y.)  377;  150  N.  Y.  Supp. 
1044.  "The  press  is  accorded, 
for  the  puJihc  interests,  a  quah- 
fied  privilege  to  discuss  and  criti- 
cize the  management  of  and 
productions  at  a  theatre  to  wliich 
the  public  are  invited,  and  this 
privilege  in  the  absence  of  ac- 
tual malice  extends  even  to  ridi- 
cule and  is  without  limitation; 
but  since  it  is  accorded  for  the 
benefit  of  the  public  only  and 
the  guidance  of  public  opinion 
and   taste,   when   (Ik;   discussion 

or  criticism  exceeds  the  bounds 
of  fair  and  honest  criticism,  and 
becomes  an  intemperate,  aspersive 
attack  upon  the  motive  of  the 
management  of  the  theatre,  or 
the  character  of  the  production 
thereat,  an  evil  and  malicious 
motive  for  the  publication  may 
l)e  inferred;  and  if  found  to  exist, 
the  publication  is  not  protected 
by  the  qualified  privilege,  but 
may,  of  course,  be  justified  by 
absence  of  malice  or  by  pleading 
and  proving  that  it  was  true 
(cases  cited)." 

'"•'  Dnilcy  v.  Super.  Court 
(1890),  112  Cal.  94;  44  Pac.  458. 
See  also:  Brandrelh  v.  Lance 
(1839),  8  Paige  (N.  Y.),  20. 



Right  of  Privacy 

Sec.  80.  In  poiuTal. 

87.  Wlit'ii  liahlc  under  statute. 

88.  Wlicn  not  liable  under  statute. 

89.  When  u.s(!  of  name  or  picture  is  libelous. 

90.  Weekly  news  motion  pictures. 

Section  86. — In  general. 

\Mieii  we  come  to  review  the  rights  of  the  public  in 
their  relation  to  tlie  motion  ])icture  industry,  we  must 
take  up  as  of  i)aramount  imi)ortance  the  "right  of  jiri- 
vacy."  This  is  a  very  recent  de\'elopment  of  the  law,  ami 
is  evidentiary  of  the  growing  tendency  of  the  courts  and 
law-making  bodies  to  protect  the  citizen  in  liis  personal 
rights  as  well  as  in  his  ])roi)erty  I'ights. 

The  policy  of  the  English  connnon  law  has  in  (he  main 
been  a  policy  of  protection  of  property  rights.  For  the 
protection  of  his  personal  riglits  the  individual  was  rel- 
egated to  the  narrow  limits  of  his  remedy  in  tort  or  to  the 
criminal  branch  of  the  law. 

The  person  of  the  individual  was  considered  a  thing 
ai)art  from  his  brain,  his  mind,  his  feelings  and  the  entire 
incorporeal  part  of  him.  So  that  when  th(^  ]ihrase  "per- 
sonal injury"  was  used,  reference  was  had  to  a  j^hysical 



injury,  suffered  directly  to  the  bodily  person.  And  when 
the  courts  desired  to  protect  a  personal  right,  recourse 
was  had  to  the  pretense  of  protecting  some  fictitious 
property  right. 

For  instance,  in  actions  for  breach  of  promise,  where  the 
injury  is  purely  in  the  mental  suffering,  there  was  woven 
in,  with  the  element  of  tort,  one  of  contract.  In  libel, 
redress  was  offered  on  the  theory  that  it  tended  to  provoke 
a  breach  of  the  peace.  Slander  was  based  on  the  assump- 
tion of  a  pecuniary  loss  suffered. 

In  none  of  these  cases  was  it  pretended  that  the  individ- 
ual had  such  vested  inherent  rights  in  his  person  per  se 
that  law  or  equity  would  extend  to  them  the  full  measure 
of  protection  afforded  him  in  his  property  rights.  Indeed, 
a  review  of  the  law  of  unfair  competition  discloses  that 
even  the  right  to  protection  in  a  man's  name,  for  trade 
purposes,  was  not  recognized  until  the  nineteenth  cen- 
tury; and  a  considerable  period  elapsed  before  legislators 
extended  that  right  to  include  protection  against  other 
modes  of  invasion  of  purely  personal  rights. 

With  the  advent  and  rapid  advance  of  the  arts  of 
photography  and  lithography,  the  spread  of  advertising, 
the  motion  picture  film  and  other  innovations  of  a  like 
nature,  a  new  form  of  invasion  of  the  individual's  per- 
sonal rights  came  into  practice— the  reproduction  and 
general  dissemination  of  his  likeness. 

In  1900  an  action  was  brought  in  New  York  '  in  which 

^  Robcrson  v.  Rochester  Folding  "Nevertheless  the  courts  r(>!i('lu>(l 

Box  Co.  (1002),  171  N.  Y.  5.38;  64  the  conclusion  thut  plnintilT  had 

N.  E.  442.    Cliicf  Justice  Parker  a   Rood   cause   of   action   against 

who     wrote     the     opinion     said:  defendants  in  that  defendants  had 

IN  (;eneral 


this  fjuostion  was  squarely  prosontod.  TIktc,  one  of  tho 
defendants  engaged  in  tlic  general  niillii»g  business,  had 
printed  and  sold,  without  the  knowledge  or  consent  of  the 
l)laintifT,  about  twenty-five  thousand  lithogra})hie  prints 
or  likenesses  of  the  plaintiff,  which  were  distributed 
broadcast  and  exhibited  in  various  [)laces  throughout  the 
country.  The  hkencss  was  a  good  one.  Plaintiff,  however, 
claimed  that  she  had  suffered  great  distress  and  anguish 
of  mind  and  body,  and  sought  injunction  and  damages. 

The  Court  of  Appeals  reversed  a  decision  in  her  favor 
upon  the  ground  that  in  the  absence  of  statute  there  was 
no  principle  of  the  common  law  which  would  sustain  her 
cause  of  action. 

It  was  held  in  England  that  the  sale  of  picture  post- 

invaded  what  is  called  'a  right 
of  privacy'— jn  other  words  tlie 
ri^ht  to  Ijc  let  alone.  Mention 
of  sucli  a  rif^ht  is  not  to  be  found 
in  B[ack^^tone,  Kent  or  any  of 
the  otlier  ^rcat  commentators 
uiKjn  the  law,  nor  so  far  as  the 
learning  of  counsel  or  the  courts 
in  this  have  been  able  to  dis- 
cover, does  its  existence  svom  to 
have  been  a.s.serted  prior  U)  about 
tlie  year  1S90  when  it  wjis  pre- 
sented with  attractiveness  and  no 
inconsiderable  ability  in  the  Har- 
vard Law  Review  (Vol.  IV,  page 
193),  in  an  article  entitled  'The 
Right  of  Privacy.'" 

Ilamj  V.  Cherry  (1909),  73  Atl. 

(R.  I.)  97.  Approves  of  Roberson 
V.  Roclienler  Folding  Box  Co.  and 
reiterates  the  doctrine  that  in- 
dependently of  statute  there  is  no 
such  thing  as  a  right  of  privacy. 

See  also:  Murray  v.  Gast  Litho- 
graphic etc.  Co.  (1894),  8 
(X.  Y.)  36;  28  N.  Y.  8upp.  271; 
Atkiu.wu  V.  Doherly  (1899),  121 
Mich.  372;  80  N.  \V.  285;  Feck  v. 
Tribune  Co.  (1907),  214  U.  S.  185; 
29  Sup.  Ct.  5.>4;  Edisot^  v.  Edison 
Fnhjfonn  Co.  (1907),  73  N.  J.  Eq. 
13(>;  <)7  Atl.  392;  Crutchcr  v.  Big 
Four  (1908),  132  Mo.  App.  311; 
111  S.  W.  891;  Hillman  v.  Star 
Puhl.  Co.  (1911),  (>4  \  691: 
117  Pac.  594. 



cards  bearing  plaiiitiff' s  likeness  was  not  actionable;  - 
that  a  physician  could  not  as  an  individual  control  the 
use  of  his  name  in  connection  with  advertisements,^  and 
that  a  pugilist  could  not  enjoin  the  exhibition  of  a  motion 
picture  showing  him  defeated  in  a  contest.^ 

Not  only  was  the  individual  helpless,  under  the  common 
law,  but  his  parents,  guardians  and  personal  represent- 
atives were  likewise  without  remedy.^ 

^Corelliw  Wall  (Eng.)  (1906),  ^Murray  v.  Gast  Lithographic 

22  Times  L.  R.  532.    Unless  the      etc.  Co.  (1894),  8  Alisc.  (N.  Y.)  36; 

matter  complained  of  was  libelous 
plaintiff  could  not  maintain  in- 
junction independently  of  statute, 
where  defendant  placed  her  pic- 
tures on  post-cards  with  alleged 
scenes  of  her  life. 

See  also:  Kunz  v.  Bosselman 
(1909),  131  A.  D.  (X.  Y.)  288; 
115  N.  Y.  Supp.  650,  where  de- 
fendant was  held  liable  for  a 
similar  offense  under  the  Civil 
Rights  Law. 

'  Clark  V.  Freeman  (Eng.) 
(1848),  11  Beav.  112  and  Dock- 
rell  V.  Dou{/all  (l<:ng.)  (1898),  78 
L.  T.  N.  S.  840,  80  L.  T.  R.  556, 
involving  the  right  of  a  physician 
to  the  use  of  his  name  where  an  ad- 
vertisement had  been  issued;  and 
Mackenzie  v.  Soden  Mineral 
Springs  (1891),  20  Abb.  N.  C. 
(N.  Y.)  402;  18  N.  Y.  Supp.  240. 

*  Palmer  v.  National  Sportiiig 
Chih  (Eng.)  (1906),  C'h.  I).,  Nov. 

28  N.  Y.  Supp.  271.  A  father 
was  held  to  have  no  cause  of 
action  against  one  for  publishing 
the  photograph  of  his  daughter. 

But  where  the  picture  or  article 
is  libelous  and  reflects  on  the 
other  members  of  the  family,  a 
cause  of  action  arises  as  to  each. 
Fenstermaker  v.  Tribune  Pub.  Co. 
(1895),  12  Utah,  439;  43  Pac.  112. 

Schuyler  v.  Curtis  (1893),  24 
N.  Y.  Supp.  509;  rev.  147  N.  Y. 
434;  42  N.  E.  22.  The  court 
below  granted  injunction  at  the 
suit  of  relatives  of  a  decedent, 
restraining  the  defendant,  a  volun- 
tary association,  from  making, 
.setting  up  and  exhibiting  in  pub- 
lic a  statu-e  of  the  deceased. 

The  Court  of  Appeals  reversed, 
holding  that  there  was  no  in- 
vasion of  the  right  of   i)rivacy. 

Sec:  Marks  v.  Jaffa  (1893),  6 
Misc.  (N.  Y.)  290;  26  X.  Y.  Supp. 

IN    GENERAL  J/ 1 

As  a  result  of  tlic  Kubei\s(jn  dccisicjii  llie  Lt'f^iftlaturc  (jf 
New  York  in  1903  passed  a  law  designed  to  meet  that 
situation,  which  law  was  incorporated  in  the  Civil  Rights 
Law  '■  and  came  up  for  construction  Ijy  the  same  court  in 
1908.  It  was  there  held  to  be  constitutional,  but  the 
court  at  the  same  time  declared  the  Act  to  be  purely 
prospective  in  its  nature,  and  that  such  law  did  not  limit 
the  right  of  one  to  use  the  portrait  of  another  which  had 
been  acquired  prior  to  the  enactment  of  the  statute." 

Later  decisions  have  discussed  the  right  to  sue  for  a 
violation  of  this  statute  in  law  and  in  ecjuity.''  In  a 
wherein  a  picture  was  made  purporting  to  show  the  evils 

6Lu\vs  of  New  York,  1003, 
Chaj).  132. 

'  Rhodes  \.  Spcrry  &  Hutchinson 
(ll)OS),  193  N.  Y.  223;  85  N.  E. 
10'J7;  aff'd  220  U.  S.  502;  31 
Sup.  Ct.  490.  "It  Is  wholly 
prospective  in  its  operation,  and, 
therefore,  wholly  good  .  .  .  and 
docs  not  apply  to  i)reviously 
acquired  i)ictures  at  all.  Upon 
portraits  the  ownership  of  which 
was  in  others  at  the  time  when 
the  act  took  elTect  its  provisions 
are  inoperative.  Such  pictures 
the  owner  is  still  at  hherty  to  use 
for  advertising  or  trade  purposes 
without  being  held  thereby  to 
have  been  guilty  of  a  crime  or  to 
have  committed  a  tort.  Ilis 
l)n)i)erty  rights  therein  are  un- 
alTected  by  the  statute." 

» Jacob  V.  Schiff  (1913),  U9 
X.  Y.  Supp.  273.  Suit  wa.s 
brought  to  restrain  the  use  of 
plaintiff's  portrait.  Held  that 
the  main  remedy  was  injunction 
with  damages  as  incidental  relief. 

"It  may  be  said  that  the  whole 
statute  (Civil  Rights)  undoubt- 
edly was  passed  with  a  view  of 
adording  to  a  plaintiff  a  right 
to  a  jury  trial  in  all  the  relevant 
issues,  if  he  elects  to  pursue  his 
remedy  at  law;  but  the  bringing 
of  the  suit  in  equity,  with  rehance 
upon  recovery  for  damages  as 
inciilental  thereto,  is  either  a 
waiver  of  the  right  to  a  jur}'  trial, 
or,  perhaps,  more  strictly  speak- 
ing, the  abandonment  of  an  in- 
tention to  stM?k  that  mode  of 


of  the  traffic  in  vice,  plaintiff's  factory  was  photographed 
exhibiting  the  firm  name  upon  it.  He  brought  suit  on 
two  causes  of  action,  one  for  hbel,  and  one  for  a  violation 
of  the  statute.  The  court  sustained  a  demurrer  on  the 
second  cause  of  action,  but  held  that  the  exhibition  of 
plaintiff's  factory  in  which  a  large  number  of  girls  were 
employed,  in  connection  with  a  picture  of  that  kind,  might 
reflect  seriously  upon  his  good  name,  and  overruled  a 
demurrer  as  to  the  first  cause  of  action.^ 

The  English  courts,  while  refusing  to  recognize  any 
right  to  protection  in  the  person,  have  occasionally  pro- 
tected the  individual  in  his  property  rights,  if  the  same 
were  affected  by  an  exhibition  or  dissemination  of  this 
kind,  and  they  granted  injunctions  on  the  theory  of  a 
breach  of  a  trust  relationship.^"  This  doctrine  has  been 
followed  in  some  cases  by  our  Federal  courts  and  in  some 
of  the  states.  ^^ 

Some  of  the  American  jurisdictions  have  taken  issue 

9  Merle  V.  Sociological  Research  149  Ky.  506;  149  S.  W.  849,  a 

(1915),  166  A.  D.   (N.  Y.)  376;  photographer  was   employed   by 

152  N.  Y.  Supp.  829.  the   parents   to   photograph   the 

^"Pollard  V.   Photographic   Co.  dead  body  of  a  deformed  child. 

(Eng.)  (1888),  L.  R.  40  Ch.  Div.  He    thereafter    copyrighted    the 

345,  in  which  a  photographer  was  same    and    published    it.      Held, 

restrained    from    putting    in    his  that   he   was   liable   in   damages 

window  a  photograi)h  of  a  patron,  on  the  theory  that  it  constituted 

See    also:    Boyil    v.    Dagenais  a  l)reach  of  a  trust  relationship, 

((.'an.)  (1897),  liap.  Jud.  Quebec,  See  also:  Atkinson  v.   Dohaiy 

lies.  66.  (1899),  121  Mich.  372;  80  N.  W. 

''Corliss    V.     Walker     (1893),  285. 

57   Fed.    (C.   C)   4.34;    64    Fed.  See  in  this  connection:  Vassar 

(('.(".)  280.  College    v.    Loose    Wiles    (1912), 

In    Dougla.H    v.    Stokes    (1912),  197  Fed.  (D.  C.)  982. 



with  tlic  rule  laid  down  by  the  Iloherson  casp  and  liave 
granted  luuteclion  ''on  the  seorc  of  it  fthe  right  to  dis- 
play one's  likeness)  being  a  property  right  of  material 
profit."  '2 

^■'Mundcn  v.  //am'.s  (1911), 
15;}  Mo.  App.  (552;  134  S.  W.  1070. 
The  court  hokl.s  that  tlic  right  of 
privacy  exists  independent  of  any 
statute;  that  one  whose  picture 
is  being  cxliibited  may  restrain 
such  tiicrcof  or  sue  for  dam- 
ages in  an  action  at  law. 

In  taking  issue  with  the  doc- 
trine laid  down  by  the  prevailing 
opinion  in  Jiobtrsun  v.  Rochester 
Folding  Box  Co.  (1902),  171  N.  Y. 
538;  64  N.  E.  442,  the  court  said: 

"We  therefore  conclude  that 
one  has  an  exclusive  right  to  his 
picture,  on  the  score  of  it  being 
a  property  right  of  material  profit. 
We  also  consider  it  to  be  a  prop- 
erty right  of  value  in  that  it  is 
one  of  the  modes  of  securing  to  a 
person  the  enjoyment  of  life  and 
the  exercise  of  liberty;  and  that 
novelty  of  the  claim  is  no  objec- 
tion to  relief.  If  this  right  is, 
in  either  resjK'ct  invaded,  lie  may 
have  iiis  remedy,  either  by  ro- 
straint  in  e(iuity,  or  damages  in 
an  action  at  law.  If  there  are 
s(x>cial  damages,  they  may  be 
stated  and  recovered;  but  such 
character  of  damages  is  not  nec- 

essary to  (lie  action,  since  general 
damages  may  be  recovered  with- 
out showing  a  specific;  and 
if  the  element  of  malice  appears, 
as  that  term  Ls  known  to  the  law, 
exemplary  damages  may  be  re- 

Edison  v.  Edison  PoUjJorm  Co. 
(1907),  73  X.  J.  Eq.  136;  67  Atl. 
392.  This  also  holds  that 
there  is  a  projK^rty  right  in  one's 
photograph,  and  that  where  de- 
fendant was  advertising  Mr.  Edi- 
son's name  and  picture  without 
his  consent ,  he  could  restrain  such 

See  also:  Von  Thadorovich  v. 
Franz  Joseph  Beneficial  Asso. 
(1907),  154  Fed.  (C.  C.)  911; 
Vnmicrbilt  v.  Mitchell  (1!>06), 
71  N.  J.  Eq.  632;  63  Atl.  1107; 
Fostcr-Milburn  v.  Chinn  (1909), 
134  Ky.  424;  120  S.  W.  .364; 
Mackenzie  v.  Sodcn  Miiural 
Springs  (1S91),  20  Abb.  X.  C. 
(X.  Y.)  402;  18  X.  Y.  Supp.  240; 
Francis  v.  Flynn  (1885),  118  U.  S. 
.38,5;  6  Sup.  Ct.    148. 

Pavesich  v.  Xew  Englatul  (1904), 
122  (Ja.  190;  50  8.  E.  &S.  This 
case  contains  an  excellent  sum- 



Section  87. — When  liable  under  statute. 

For  a  leading  case  illustrating  the  application  of  the 
Civil  Rights  Law  to  motion  pictures  Binns  v.  Vitagraph 
Co.  is  of  great  interest."  There  the  defendant  released 
a  film  which  purported  to  depict  the  story  of  a  shipwreck. 
Plaintiff,  although  he  had  never  posed  for  the  picture  nor 
authorized  the  use  of  his  name  therein,  was  widely  ad- 
vertised as  the  hero.  Although  it  was  claimed  that  the 
actual  photograph  of  the  hero  in  the  story  was  not  that 
of  plaintiff,  the  court  nevertheless  restrained  the  use  of 
the  film  as  coming  clearly  within  the  statute. 

A  newspaper  was  held  to  violate  the  plaintiff's  rights  m 
publishing  a  photograph  after  a  severance  of  business  rela- 
tions between  them;  "  and  in  another  case  defendant  was 

niary  of  the  law  relating  to  the 
right  of  privacy.  , 

13  Binns  v.  Vitagraph  Co. 
(1913),  210  N.  Y.  rA;  103  N.  E. 
1108.  "A  picture  within  the 
meaning  of  the  statute  is  not 
necessarily  a  photograph  of  the 
living  person,  but  includes  any 
representation  (A  such  person. 
The  picture  represented  by  the 
defendant  to  be  a  true  picture  of 
the  plaintiff  and  exhibited  to  the 
I)ub]ic  as  such,  was  intended  to 
be,  and  it  was,  a  representation. 
of  tlie  plaintiff.  Tlu;  defendant 
is  in  no  i)osition  to  say  that  the 
pif'ture  d(jcs  not  represent  the 
plaintiff  or  that  it  was  an  actual 
j)icture  of  a  jKirson  made  up  to 

look  like  and  impersonate  the 

In  this  connection  see  also: 
D'Altomonte  v.  A''.  Y.  Herald 
(1913),  154  A.  D.  (N.  Y.)  453; 
139  N.  Y.  Supp.  200;  modified 
208  N.  Y.  596;  102  N.  E.  1101. 

^*  Bowden  v.  Amalgamated  Pic- 
torials, Lim.  (Eng.)  (1911),  80 
L.  J.  Ch.  291;  1  Ch.  3S();  103  L.  T. 
829.  Where  plaintiff  supplied 
photographs  to  a  newspaper  at 
agreed  rates,  and  after  he  severed 
his  connection  with  it,  the  news- 
paper continued  to  jMiblish  jjhoto- 
graphs  of  plaintilT,  some  copy- 
righted, and  some  uncopy righted, 
Ifrlil  that  the  termination  of  the 
contract    amounted    to    a    with- 

WMKN     LlAUl.K     INDKU    srATUTK 


not  permitted  to  advertise  his  lengthy  association  in 
business  with  i)huntifT.''^ 

Where  defendant,  without  consent,  used  the  name  of 
Dr.  diaries  W.  Eliot  for  a  series  of  l)ooks,  calling  the  same 
"Dr.  Eliot's  Five-foot  Shelf"  and  "Dr.  Eliot's  Set"  it 
was  held  that  he  was  violating  the  statute. '° 

The  New  York  statute  i)ro\i(les  that  the  consent  of 
the  })erson  whose  name  or  ])icture  is  used  must  be  ob- 
tained in  writing,  and  an  oral  authorization  is  insufficient.'' 
drawalof  all  open  offers  and  plain-      doinurrable.     The   authorization 

tilT  could  enjoin  both  the  publi- 
cation of  the  copyrighted  and 
uncopyrightcd  photographs. 

See  also:  Man.sdl  v.  Valley 
Prinling  Co.,  Lim.  (Eng.)  (ll)OS), 
77  L.  J.  Ch.  742;  2  Ch.  441. 

See  in  this  connection:  lliUinau 
V.  Star  Pub.  Co.  (1911),  64  Wash. 
695;   117  Pac.  594. 

'^Thompson  v.  Tillford  (1913), 
152  A.  D.  (X.  Y.)  92S;  137  N.  Y. 
Supp.  523. 

'•/iVtW  V.  Jones  (1910),  (>() 
Misc.  (X.  Y.)  95;  120  X.  Y.  Sup]). 
9S<);  alT'd  140  A.  D.  (X.  Y.) 
911;  125  X.  Y.  Sup|).  1119. 

"WynU  V.  McCrecnj  (190S), 
120  A.  1).  (X.  Y.)  0.')0;  111  X.  Y. 
Supp.  SO.  Plaintiff,  an  actres.s, 
had  orally  authorized  the  de- 
fendant to  sell  and  make  any 
it  .saw  fit  of  her  photograph. 
Ilfld,  that  where  plaintiff  brought 
an  action  undj'r  the  Civil  Rights 
J^aw,  a  defense  of  that  kind  was 

.should  have  been  in  writing. 

Furd  V.  Ilcancy  (1910),  X.  Y. 
Law  Journal,  July  22,  Bischoff,  J. 
"Plaintiff  moves  for  an  injunc- 
tion pendente  lite  restraining  de- 
fendant from  manufacturing  the 
positive  print  from  a  certain 
negative  motion  picture  of  the 
plaintiff  in  their  ix)sse,ssion ,  and 
from  exhibiting  or  producing 
the  same  in  violation  of  the  rights 
claimed  bj'  her  under  sections  '^ 
and  51  of  the  Civil  Rights  Law. 
It  is  undisputed  that  the  defcnd- 
ant.s  intend  to  use  the  .said  pic- 
ture for  the  purposes  of  trade, 
and  it  is  admitted  by  them  that 
tliev  have  not  obtained  the  writ- 
ten consent  of  the  plaintiff  to 
such  use,  as  provided  for  in  said 
sections.  The  defendantvS,  by 
certain  mesne  transactions,  dulv 
aciiuired  said  negative,  originallv 
owned  i)y  a  certain  Cameraphonc 
Coujpany,  for  whom  the  plaintiff 



posed  and  to  whom  she  gave  her 
consent  to  the  exhibition  of  said 
picture  for  one  year.  The  said 
agreement  was  entered  into  by 
the  plaintiff  with  said  company, 
under  date  of  9th  of  October, 
1908,  and  granted  the  right  to 
said  company  to  exhibit  the  pic- 
ture so  taken  for  the  year  ending 
on  the  2nd  of  November,  1909. 
The  said  agreement  is  in  the  form 
of  a  letter  written  on  behalf  of 
the  said  company  to  the  plaintiff, 
but  is  not  signed  by  her.  There 
can  be  little  doubt,  however, 
that  the  acceptance  of  the  latter 
and  the  subsequent  posing  by  her 
pursuant  to  the  terms  thereof 
should  be  regarded  as  a  written 
consent  within  the  statute.  The 
defendants  admit  in  the  brief 
filed  in  their  behalf  that  the  right 
given  to  said  company  was  limited 
to  one  year,  but  state  that  they 
were  unaware  of  the  existence 
of  such  agreement  at  the  time  of 
their  purchase,  and  therefore 
cannot  be  bound  by  its  terms. 
They  assert  that  they  arc  bona 
fide  purchasers  for  value,  and 
that  the  rule  which  is  applied 
upon  the  purchase  of  personal 
property,  that  the  purchaser 
must  have  notice  that  ho  buys 
with  only  a  qualified  right  of  use, 
if  such  is  the  fact,  should  prevail 
and  prevent  the  dcfotidaiits  being 

bound  by  some  special  and  secret 
agreement  made  by  the  plaintiff 
with  the  Cameraphone  Company. 
The  difficulty  with  such  a  con- 
tention is  that  it  does  not  meet 
the  point  made  by  the  plaintiff 
that  the  said  statutory  consent 
has  not  been  obtained.  The 
defendants,  in  ordinary  prudence, 
were  charged  with  the  dutj''  of 
ascertaining,  before  they  made 
the  purchase,  as  to  whether  the 
latter  would  involve  the  right 
to  use  the  picture  for  purposes  of 
trade,  notwithstanding  the  pro- 
visions of  the  Civil  Rights  Law. 
If,  because  of  omission  to  make 
due  inquiry  in  that  respect, 
embarrassment  exists,  they  have 
no  one  but  themselves  to  blame. 
The  further  circumstances  that 
the  plaintiff  was  an  actress,  of 
more  or  less  renown,  and  that 
therefore  her  j)icturc  would  have 
value  as  being  of  some  public 
interest,  might  well  have  put  the 
defendants  upon  inquiry  to  ascer- 
tain whether  the  apparently  valu- 
able rights  they  intended  to  ac- 
<iuirc  were  unciucstioned.  The 
cases  cited  by  tlu;  defendant  and 
wherein  the  i)ersons  giving  the 
jM-ivileges  as  to  their  pictures 
or  names  affcmpted  to  curtail 
their  use,  altliougli  no  limitation 
had  been  placed  on  the  rights 
granted,  it  will  be  seen,  can  have 

WHEN  i.iauli:  rN'DKJi  statute  2n 

Dissoniination    of    j)i('ture-postcards   with    a   likeness    of 
pluiutiiT  is  a  violation."* 

Defendant's  good  faith  is  entirely  immaterial  so  far  as 
the  injunction  is  concerned. ''•' 

no  applicntinii  here.  Tlie  statute 
docs  not  i)revcnt  the  person 
giving  a  written  consent  limiting 
or  (jualifying  it  in  any  way  lie 
may  see  fit,  and  that  was  pre- 
cisely what  was  clone  in  the  pres- 
ent circumstances,  as  appears 
by  saitl  agreement.  I  think  from 
what  tlius  appears  Ihat  the  plaiii- 
titT  is  entitled  to  j)revent  tlic  use 
of  the  said  picture  pendente  lite, 
and  to  the  relief  demanded  herein. 
Motion  granted." 

^^Kiinz  V.  liosfielman  (1909), 
131  A.  D.  (X.  Y.)  2SS;  115  N.  Y. 
Supp.  GoO.  On  demurrer  it  was 
held  that  a  complaint  which 
stated  tliat  the  defendant  was 
engaged  in  the  business  of  sell- 
ing f)ortraits  and  post-cards  and 
among  other  places  in  the  City 
of  New  York  he  used,  displayed, 
circulated  and  ofTered  for  sale 
for  the  purpose  of  trade  the  plain- 
tiff's portrait  and  picture,  stated 
a  cause  of  action  under  the  New 
York  statute. 

See  also:  Corelli  v.  Wall  (Eng.) 
(1900),  22  T.  L.  11.  fjiri. 

'» Herbert  v.  Universal  Talk. 
Mncli.    Co.    (I<.)01),   X.    Y.    Law 

Journal,  .March  9.  "I  am  of  the 
opinion  that  the  plaintiff  brings 
himself  squarely  within  the  pro- 
visions of  Chapter  132  of  the 
Laws  of  1903,  giving  a  person 
whose  naitie  is  used  for  adver- 
tising purpcises  or  for  the  purpose 
of  trade  without  written  con.sent 
fii-st  obtained,  the  right  to  main- 
tain an  e(iuitable  action  to  re- 
strain the  use  of  his  name  and 
recover  damages  for  any  injury 
sustained  by  reason  of  such  use. 
.  .  .  The  statute  is  invoked  to 
restrain  the  further  sale  of  those 
wares  through  the  aid  or  instru- 
mentality of  the  addetl  commer- 
cial value  given  them  by  the 
of  plaintiff's  name  for  purjjoses  of 
trade  or  advertising.  Xo  ques- 
tion of  defendant's  good  faith  is 
necessarily  involved,  it  may  well 
have  been  misled,  liut  the  plain- 
tiff is  entitleil  to  the  relief  which 
the  statute — pa-ssed  to  remedy  a 
theretofore  irremediable  injust- 
ice {lioberson  v.  Ii>Khe.'<ter,  F.  li. 
Co.  (1902).  171  X.  Y.  M'y,  64 
N.  \'].  442) — was  intended  to  give. 
Injunction  should   is.sue." 


Plaintiff  is  not  barred  from  maintaining  the  action  by 
reason  of  his  infancy.-" 

Both  the  photographer  who  takes  the  picture  and  the 
author  who  uses  it  in  the  book  are  hable  as  joint  tort 

Section  88. — When  not  liable  under  statute. 

The  right  of  privacy  is  purely  a  personal  right,  and  does 
not  survive  the  death  of  him  whose  right  has  been  in- 
vaded, so  as  to  give  his  personal  representative  a  cause  of 
action.--  Nor  may  it  be  exercised  by  everybody  in  his 

A  person  who  has  become  prominent  in  public  affairs, 
and  whose  comings  and  goings  are  more  than  of  ordinary 
interest  to  the  public,  such  as  a  president  or  other  high 
state  official  or  a  famous  general,  has  in  fact  abandoned  his 
right  of  privacy  and  may  not  invoke  the  statute.-^     A 

■^  M widen  y.  Harris  (1911),  153  action  for  violation  of  the  right 
Mo.  App.  652;  134  S.  W.  1076;  of  privacy  under  sections  50  and 
Wyatt  V.  McCreery  and  Wyatt  51  of  the  Civil  Rights  Law  of  New 
V.  Wanamaker  (1908),  126  A.  D.  York  is  personal  in  its  character 
(N.  Y.)  650;  111  N.  Y.  Supp.  and  does  not  survive  the  death 
86.  of  the  person  to  whom  the  statute 

^^  Riddle  v.  McFadden  (1907),     gives  it. 
116  A.  D.  (N.  Y.)  353;  101  N.  Y.  "See  in  this  connection:  Cor- 

Supp.  606.  liss   V.    Walker    (1894),   64   Fed. 

Rohlmon  v.  TexUlc  Pitbl.  Co.  (C.  C.)  280;  Munden  v.  Harria 
(1916),  X.  Y.  Law  Journal,  (1911),  153  Mo.  App.  652;  134 
June  14.  See  for  lengthy  discus-  S.  W.  1070;  Va.s.sar  College  v. 
sion  of  Sections  50  and  51  of  Jjoose  Wiles  (1912),  197  Fed. 
the  New  York  Civil  Rights  Law.      (D.    C.)    982;    Colgate    v.    While 

^^  Wyatt  V.  I1all\  Port.  Studio  (1909),  169  Fed.  (C.  C.)  887; 
(1911),  71  (\.  Y.)  199;  128  180  Fed.  (C.  C.)  882  (Una!  hoar- 
N.   Y.   Supp.   247.     A  cause  of      ing). 



criininul,  also,  has  no  siifh  right,  and  it  was  licld  that  he 
could  not  restrain  the  exhibition  of  his  picture  in  a 
Rogue's  Gallery.-^ 

Statutes  which  prohibit  the  use  of  the  name  or  picture 
for  advertising  purposes  are  hold  to  he  penal  and  are 
strictly  construed.  A  complaint  therefore  wliich  alleged 
that  a  picture  was  printed  in  a  magazine  "in  adornment 
thereof"  failed  to  state  a  cause  of  action.-'^    When  the 

^*Owen  V.  Partridge  (1903), 
82  N.  Y.  Supp.  248. 

**  Bytorelzski  v.  Edward  L. 
Wilson  Co.  (1917),  N.  Y.  Law 
Journal,  Jan.  24.  "The  action  is 
brought  to  recover  damages  under 
section  51  of  the  Civil  Rights 
Law,  as  amended  by  chapter 
226,  Laws  of  1911,  which  pro- 
vides as  follows:  'Any  person 
whose  name,  portrait  or  picture 
is  used  within  this  state  for  ad- 
vertising purposes  or  for  the  pur- 
poses of  trade,  without  the  writ- 
ten consent  first  obtained,  as 
above  provided,  may  maintain 
an  equitable  action  in  the  Su- 
preme Court  of  this  state  "against 
the  person,  firm  or  corporation 
so  using  his  name,  portrait  or 
picture,  to  prevent  and  restrain 
the  use  thereof,  and  may  also 
sue  and  recover  damages  for  any 
injuries  sustained  by  reason  of 
such  use,  and  if  the  defendant 
shall  have  knowingly  used  such 

person's  name,  portrait  or  picture 
in  such  manner  Jis  is  forbidden 
or  declared  to  be  unlawful  by 
the  last  section,  the  jury,  in  its 
discretion,  may  award  exemplary 
damages.  But  nothing  contained 
in  this  act  shall  be  so  construed 
as  to  prevent  any  person,  firm 
or  corporation  practicing  the  pro- 
fession of  photography  from  ex- 
hibiting in  or  about  his  or  its 
establishment  sjjecimens  of  the 
work  of  such  establishment,  un- 
less the  same  is  continued  by 
such  person,  firm  or  coriX)ration 
after  written  notice  objecting 
thereto  has  been  given  by  the 
|X!rson  portrayed.'  The  com- 
plaint in  substance  alleges  that 
defendant  owned,  ])ul>lished  and 
circulated  for  commercial  pur- 
poses in  connection  with  its 
liusiness  a  booklet  or  magazine, 
and  in  the  July  number  exhibited 
on  one  of  its  pages,  'in  lulornment 
thereof,'   the  iwrtrait  or  picture 



statute  gives  the  right  of  action  to  "citizens"  alone,  a 
failure  to  allege  the  citizenship  of  the  plaintiff  makes  the 
complaint  demurrable. ^^ 

of  plaintiff  without  his  consent. 
The  pubUcation  of  a  person's  por- 
trait is  not  in  itself  illegal.    Rober- 
son  V.  Rochester  Folding  Box  Co., 
171  N.  Y.  538.    To  come  within 
the  statute  the  use  of  the  portrait 
must  be  for  advertising  purposes 
or  purposes  of  trade.    In  Jeffries 
V.  N.   Y.  Evening  Journal  Pub. 
Co.,  124  N.  Y.  S.  780,  it  was  held 
that  the  publication  of  a  portrait 
in  a  newspaper  in  connection  with 
the  biography  of  the  person  was 
not  within  the  statute;   that  a 
picture  is  not  used  for  advertising 
purposes  unless  it  is  part  of  an 
advertisement,  and  that  the  pur- 
poses of  trade  refer  to  commerce 
or  traffic  and  not  to  the  dissemi- 
nation   of    information.      There 
is  nothing  in  the   complaint  to 
show  either  expressly  or  by  fair 
intendment  that  the  picture  was 
used  as  part  of  an  advertisement 
or  for  purposes  of   trade,  com- 
merce  or   traffic.     It   is   alleged 
to   have    been    inserted   on    the 
top   of  the  page  'in   adornment 
thereof.'     If  inserted  for  adorn- 
ment merely,  or  for  any  other 
jjurposo  not  specified  in  the  stat- 
ute, j)l!iintifT  cannot  recover.     It 
is  stated  in  liinns  v.  Vilagrapli  Co., 

210  N.  Y.  55,  that  "the  statute 
is  very  general  in  its  terms,  but 
when  a  living  person's  name, 
portrait  or  picture  is  used  it  is 
not  necessarily  and  at  all  times 
so  used  either  for  advertising 
purposes  or  for  the  purposes  of 
trade.  The  statute  is,  in  part 
at  least,  penal,  and  should  be 
construed  accordingly.  So  con- 
strued, and  also  construed  in  con- 
nection with  the  history  of  chap- 
ter 132,  Laws  of  1903,  which  was 
enacted  at  the  first  session  of  the 
Legislature  after  the  decision 
in  the  Roberson  case,  it  does  not 
prohibit  every  use  of  the  name, 
portrait  or  picture  of  a  hving 
person."  That  its  use  was  for 
one  of  the  purposes  enumerated 
cannot  be  assumed;  it  must  be 
alleged  and  proved." 

See  also:  Merle  v.  Sociological 
Research  (1015),  100  A.  D.  (N.  Y.) 
376;  152  N.  Y.  Supp.  829. 

^''Fuller  V.  McDermott  (1904), 
87  N.  Y.  Supp.  536. 

See    also:    Lcris   v.    IJitchkock 

(1882),10(1).  (:.)Fed.  4;  U.S.  v. 

Taylor  (1880),  3  Fed.  (C.  C.)  563; 

Messenger    v.    State    (1889),    25 

Neb.  674;  41  N.  W.  638. 



Tho  Civil  Iii^;lits  Law  as  enacted  in  New  York  was  not 
intended  to  jjrevent  tlie  dissemination  of  news,  and  it  was 
held  that  the  defendant  newspaper  was  not  nal)le  for  the 
pubhcation  of  plaintiff's  name  and  pieture  in  a  sinj^le 
issue;  to  hold  otherwise  would  be  tantamount  to  nuizzliuK 
the  press.'-" 

It  seems  that  one  may  be  estopped  from  in\'oking  the 
aid  of  the  statute,  as  where  he  has  lent  his  name  to  a  busi- 
ness in  which  his  name  or  pictiu'e  is  being  advertised, 
and  has  permitted  the  owner  of  the  business  to  expend 
large  sums  of  money  to  exploit  such  name  or  picture,-* 
or  sells  the  business  and  stock  of  a  corporation  ])earing  his 

"  Moser  v.  Press  Pub.  Co. 
(190S),  59  Misc.  (N.  Y.)  78;  109 
N.  Y.  Supp.  9G3;  Colyer  v.  Fox- 
Pub.  Co.  (1914),  1G2  A.  D.  (N.  Y.) 
297;  140  N.  Y.  Supp.  990;  Jef- 
fri4;s  V.  N.  Y.  lu'ciiing  Journal 
Pub.  Co.  (1910),  67  Misc.  (X.  Y.) 
570;  124  N.  Y.  Supp.  780. 

28  Wendell  V.  Comluil  Mach.  Co. 
(1911),  74  Misc.  (N.  Y.)  201;  123 
N.  Y.  Supp.  758.  Where  one 
who  is  in  another's  employ  volun- 
tarily poses  for  a  portrait  to  be 
used  in  liis  master's  business  and 
with  knowlodRo  that  he  was  to 
make  its  j)roscnt  use  thereof,  he 
may  not,  after  the  latter  has  in- 
curred ox|)enses  in  its  use  to  build 
up  his  business  maintain  an  ac- 
tion under  the  Civil  Higlits  I^iw 
upon  the  termination  of  the  em- 

ployment, to  restrain  tho  further 
use  of  his  portrait  for  advertising  Wyall  v.  McCreery  and 
Wyatt  V.  Wanamaker  (1908),  126 
A.  D.  (X.Y.)  050;  HI  N.  Y.  Supp. 
80,  distinguished  upon  the  ground 
of  i)laintitT's  infancy,  the  infant 
not  being  estopped  to  invoke  the 
protection  accorded  under  the 

Sec  also:  Almiiui  v.  Sea  Beach 
R.  Co.  (1913),  157  A.  D.  (X.  Y.) 
230;  141  N.  Y.  Supp.  842.  But 
see:  Bowden  v.  Avudgatnatetl  Pic- 
torials L'mld  (Eng.)  (1911),  103 
L.  T.  829. 

"ir/«7e  V.  While  (1914),  160 
A.  1).  (X.Y.)  709;  145  X.Y.  Supp. 
743.  While  this  case  holds  tiiat 
one  selling  his  right  to  a  cor^xtra- 
tion  selL-s  therewith  the  right  to 


In  no  case  will  the  court  grant  relief  pendente  lite  where 
the  plaintiff's  right  is  involved  in  doubt.'^° 

Section  89. — When  use  of  name  or  picture  is  libelous. 

It  frequently  happens  that  the  use  of  the  person's 
name  or  picture  is  not  such  as  may  be  restrained  under 
the  Civil  Rights  Law,  but  that  such  use  will  amount  to  a 
libel.  In  that  case  equity  will  not  restrain,  but  the  plain- 
tiff may  recover  damages  at  law.^^ 

Defendant  exhibited  a  ''Wliite  Slave"  film  in  which 

plaintiff's  factory  was  depicted  as  being  a  rendezvous  for 

vicious  characters.    It  was  held  that  this  amounted  to  a 

libel,  although  it  was  not  a  violation  of  the  Civil  Rights 

A  publication  of  plaintiff's  portrait  in  conjunction  with 

the  use  of  his  own  name  where  in  doubt  the  court  will  not  grant 
the  corporation  had  borne  it,  it  an  injunction  pendente  Hte  con- 
seems  to  us  that  this  rule  is  taining  the  same  relief  that  would 
limited  by  the  rule  that  where  the  ultimately  be  granted  if  the 
skill  and  personal  qualities  of  the  plaintiff  succeeded  upon  the  trial 
vendor  are  peculiarly  valuable  of  the  action." 
as  in  the  case  of  an  artist,  musi-  "  Bullcrkk  Piibl.  Co.  v.  Typo- 
clan,  actor  or  director,  a  transfer  graphical  Union  (190G),  50  Misc. 
of  the  name  is  not  permissible  (N.  Y.)  1;  100  N.  Y.  Supp.  292. 
as  it  would  tend  to  work  a  fraud  A  court  of  equity  will  not  enjoin 
upon  the  public.  See  Blakcly  v.  a  libel  even  where  the  plaintiff 
Sousa  (1900),  197  Pa.  305;  47  by  reason  of  his  inabihty  to  prove 
Atl.  286.  special  damage  has  no  remedy  at 

^"Bulterick  Pvhl.  Co.  v.  Typo-  law.    (See  cases  cited  therein.) 

graphical  Union  (1900),  50  Misc.  Sec  also:  Section  12. 

(X.   Y.);   100  N,  Y.  Supp.   292.  '^■^  Merle     v.     Sociological     Re- 

" Where   plaintiffs'   right    to    the  .search  (1915),  HiO  A.  I).  (N.  Y.) 

ecjuitable  relief  sought  is  involved  376;  152  N.  Y.  Supp.  829. 

WHEN    USE    OF    N'AMK    Oil    I'KTrUK    IS    I.IUKI.Ors      2>Q 

a  wliiskey  advert isonient  was  licld  to  he  libelous,  and 
defendant  was  bound  to  resi)ond  in  damages  even  tliouj^h 
it  had  made  an  innocent  mistake.^'  And  a  newspaper  was 
held  liable  for  the  publication  of  a  picture  of  i)laintifT 

o\er  an  article  which  was 

"PecA:  V.  Tribune  Co.  (1908), 
214  U.  S.  IS.-);  2«)  Sup.  Ct.  o.-)4. 
PlaintilT'.s  portrait  wa.s  publislicd 
ill  defendant's  newspaper  in  con- 
nection with  an  adverti.semeiit 
of  wliiskey.  »Sonie  name  other 
than  plaintifT's  was  printed  at 
the  foot  of  the  picture.  The  court 
held  that  the  publication  of 
plaintiff's  portrait  in  connection 
with  such  an  ailvertisement  with 
the  statement  made  therein  that 
plaintiff  liad  drunk  the  whiskey 
was  libelous.  It  was  further  hekl 
that  it  was  innnaterial  whether 
the  publication  was  caused 
through  an  innocent  mistake. 

The  court  cites  in  support  of 
the  jjroposition  that  it  is  innnate- 
rial whotiicr  tlie  error  is  causetl 
iimocently.  King  v.  WoodJalL 
(Eng.)  Lofft.  776,  781;  Hearne  v. 
SUmrll  (Eng.)  12  A.  and  ]•:.  719, 
720;  Shi'jihedidv.  ]yhil(ikTr  (Eng.), 
L.  R.  10  ('.  P.  502;  Clark  v.  Xorth 
American  Cb.  (1902),  20;i  Pa.  St. 
346;  53  Atl.  237;  Moraase  v. 
Bruchn  (1890),  151  Mass.  507;  25 
N.  E.  74. 

true  of  another  but  not   of 

See  generally:  De  Sandn  v.  Xew 
York  Herald  Co.  (1904),  .S.S  A.  D. 
(X.  Y.)  492;  85  N.  V.  Supp.  Ill; 
Clary-Squire  v.  Presa  Publ.  Co. 
(1901),  58  A.  D.  (X.  Y.)  .362;  6.S 
X.  Y.  Supp.  1028;  Farley  v. 
Ercning  Chronicle  Publ.  Co. 
(1905),  113  Mo.  App.  216;  Emer- 
son V.  Nash  (11X)5),  124  369; 
102  X.  \V.  921;  Wandl  v.  HearsCx 
Chicago  American  (1906),  129 
Wis.  429;  109  X.  W.  70;  Foster 
Milburn  Co.  v.  Chinn  (1909),  134 
Ky.  424;  120  S.  W.  3&4;  Morrison 
V.  Smith  (1904),  177  X.  Y.  360; 
69  X.  E.  725;  Hart  v.  Woodbury 
Dei-mat.  Institute  (1906),  113 
A.  D.  (X.  Y.)  281 ;  98  X.  Y.  Supp. 
1000;  Taylor  v.  Hearst  (1895), 
107  Cal.  262;  40  Pac.  392;  Pair- 
sich  V.  Xew  England  (1904),  122 
Cla.  190;  .50  S.  E.  68. 

"  Farley  v.  Ercning  Chronicle 
Co.  (1905),  113  Mo.  App.  210; 
87  S.  W.  565. 

Rose  Ball  v.  The  Tribune  (1905), 
12,3  111.  App.  235.  Where  de- 
fendant's iu'ws|)apcr  iiriiitcii  an 
article  and  picture,  the  likeuesd 


In  one  case  it  has  been  held  that  where  the  libel  pub- 
lished related  to  the  family  as  a  whole,  a  cause  of  action 
arose  to  each  member  of  the  family.^^ 

Section  90. — Weekly  news  motion  pictures. 

The  issuance  of  motion  pictures  as  ''Weekly  News" 
wherein  are  depicted  the  current  events  of  the  day,  has 
become  a  regular  feature  of  several  of  the  larger  producers. 
The  scenes  are  taken  from  the  actual  happenings,  and  are 
reproduced  without  any  embelHslmients  or  changes 

The  position  taken  by  the  motion  picture  producers  is 
that  their  "Weekly  News  Service"  has  become  one  of  the 
means  of  disseminating  news,  and  is  to  all  intents  and  pur- 
poses a  newspaper  with  all  the  rights  and  privileges  of 
the  press. 

They  contend  that  since  newspapers  are  not  pro- 
hibited by  the  Civil  Rights  Statutes  from  printing  and 
publishing  the  hkenesses  of  persons  ^^  they  as  well  have  the 

being  that  of  plaintiff,  but  the  photographed    and    her    picture 

article  referring  to  one  as  "young  printed  in  defendant's  magazine, 

composer  secured  morphine  late  "When    the    statute    was    en- 

in  the  night  of  her  dcatli,"  relat-  acted  originally  in  1903  the  cus- 

ing    to    another    person,   held    a  torn  of  publishing  in  papers  the 

question  for  the  jury.  portraits  of  individuals  who  were 

36  FcnMcrmaker  v.  Tribune  Pub.  distinguished   in    their   activities 

Co.  (1805),  12  Utah,  439;  43  Pac.  of  life  was  very  general.     If  the 

112.  Legislature  had  intended  to  wii)e 

'•C'o/yer  V.  Richard  Fox  Pnh.  out  this   custom,  it  could   have 

Co.  (1914),  162  A.  D.  (N.Y.)  297;  said   so   easily    in    positive    lan- 

1  U)  N.  Y.  Sujip.  999.    The  plain-  guage." 

tilT,  a  professional  high-diver,  was  JiJJrics  v.  N.  Y.  Evening  Juur- 


right  to  reproduce  sucli  likenesses  in  tlieir  current  event 

This  question  was  squarely  presented  to  a  court  for  the 
first  time  in  the  case  of  IIuTJiiston  v.  Universal  Film  Mfg. 
Co.  where  the  learned  justice  held  that  the  motion  i)icture 
industr}',  as  a  whole,  was  a  private  enterprise  and  that 
there  were  no  substantial  points  of  resemblance  between 
the  motion  picture  weekly  news  service  and  the  newspaper. 
For  that  reason  the  court  held  that  the  motion  i)icture 
reproduction  and  exhibition  of  a  portrait  of  a  prominent 
woman  lawyer,  featuring  her  in  a  sensational  news  event, 
constituted  an  invasion  of  her  personal  rights  under  the 

In  view  of  the  importance  of  this  decision  the  entire 
opinion  is  given  below. ^"  It  must,  however,  be  remem- 
bered that  it  is  not  a  decision  of  a  court  of  last  resort. 

7MiZ  (1910),  G7  MLsC.  (X.  Y.)  570;  ture  of  a  pugilist  or  president 
124  N,  Y.  Supp.  780.  Plaintiff,  would  bring  the  case  within  the 
u  famous  jnigilist,  .sought  under  statute  where  that  oi  an  obscure 
Section  51  of  the  Civil  Rights  and  (juiet  citizen  would  probal>Iy 
Law  of  N.Y.  (formerly  Cliap.  132,  not;  nor  docs  ho,  indeed,  object 
Laws  1903)  to  enjoin  the  defend-  to  his  picture,  except  in  couuec- 
unt  from  publishing  a  biography  (ion  with  his  biography.  Motion 
in  which  he  was  pictured.  for  tenii-K)rar>' injunction  denied." 
The  court  there  held:  "In  "  Iluinistun  v.  I'niirrsnl  Film 
my  opinion  a  picture  is  not  used  Mfg.  Co.  (1917),  X.  Y.  Law 
'for  advertising  witiiin  Journal,  Aug.  10th,  Ordway  J.: 
its  meaning  unless  the  picture  Motion  for  injunction  iM?ndcntc 
is  part  of  an  advertisement,  while  lite  to  restrain  defendants  from 
'trade'  refers  to  'commerce  or  using  and  disphiying  the  plaintiff's 
traffic,'  not  to  the  dissemination  name,  photograph  and  portrait 
of  information.  According  to  the  in  their  moving  picture  fihns,  con- 
plaintiff's   construction    the    pic-  trary  to  the  provisions  of  sectiona 



Whether  or  not  it  will  be 
*' weekly  news  service"  is  in 

50  and  51  of  the  Civil  Rights  Law. 
The  defendants  have  organized 
and  are  conducting  a  business 
called  the  "Universal  Animated 
Weekly,"  in  which  they  produce 
and  distribute  for  use  by  their 
customers  reels  of  films  of  motion 
pictures,  which  are  photographs 
of  actual  current  events  which 
they  deem  of  public  interest. 
These  reels  are  produced  and 
distributed  weekly  and  are  ex- 
hibited all  over  the  country  in 
moving  picture  theatres  as  soon 
as  possible  after  the  occurrence 
of  the  events  depicted.  The  de- 
fendants furnish  with  them  to 
their  customers  posters  which 
are  used  as  bulletins  for  display 
outside  of  the  place  of  exhibition 
to  inform  the  public  what  will  be 
shown  within.  The  defendants 
admit  that  "this  service  is  mar- 
keted and  sold"  by  them,  and  is 
"a  source  of  substantial  profit" 
to  the  defendants. 

In  their  reel  of  films  used  as 
alK)ve  described  and  called  "  Uni- 
versal Animated  Weekly  No,  77," 
tlie  defendants  have  included 
photographs  or  pictures  of  the 
))laiiitin"  accompanied  with  th(; 
following  "legends:" 

"Woman  lawyer  solves  Ruth 

finally  determined  that  the 
its  essence  a  newspaper,  the 

Cruger  mystery.  After  world- 
wide search,  Mrs.  Grace  Humis- 
ton's  persistent  efforts  lead  to 
discovery  of  high  school  girl's 
murder — New  York  City.  Sub. 
The  woman  who  succeeded  where 
police  failed — Mrs.  Grace  Humis- 
ton.  In  Cocchi's  cellar — passed 
by  millions — the  crime  was  hidden 
for  months.  Thousands  attracted 
to  scene  of  crime." 

They  have  also  furnished  post- 
ers or  publicity  matter  accom- 
panying said  number  of  the 
"Weekly"  films,  to  be  used  by 
their  customers  as  above  de- 
scribed, containing  in  largedisplay 
type  the  same  words  as  appear  in 
the  main  legend  above  quoted. 
These  reels  of  films  and  posters 
are  being  used  by  at  least  fifty 
customers  of  the  defendants  in 
moving  picture  theatres  in  New 
York  City  and  other  parts  of  the 

The  plaintiff  has  not  given  her 
written  consent  to  this  use  of  her 
name  and  picture,  and  now  brings 
suit  for  an  injunction  against 
such  use  and  for  damages.  In 
my  opinion  this  case  cannot  be 
distinguished  in  principle  from 
the  case  of  Jh'niis  v.  Vilnxjraph  Co., 
210  N.  Y.  51.     The   defendants 



})roducer  may  in  no  event  under  a  statute  of  this  kind, 
take  the  name  or  photograph  of  a  person  without  his  con- 
Weekly"  and  are  pnKluce<l  and 
distributed  weekly  and  used  as 
soon  as  pKJSsible  after  the  occur- 
rence of  tlic  events  does  not  make 
them  a  ne\vsi)a[X'r,  or  \mng  them 

attempted  to  distinguish  it  on 
the  ground  that  in  the  liinns 
case  the  films  were  not  photo- 
graphs of  an  actual  event  and  of 
actual  i)cople,  hut  were  photo- 
graphs of  actors  ix)sed  for  the  pur- 
p<jse  and  of  scenery  simulatinii; 
the  actual  scenes  of  the  wreck  of 
the  "Repul)lic,"  that  is,  were 
really  a  photoplay,  whereas  in 
this  case  the  films  are  photo- 
graphs of  actual  people  and 
events  precisely  as  they  acted 
and  happened,  and  further  argue 
that  there  is  a  legal  distinction 
between  photoplay  as  commonly 
known  and  used  and  tlieir  service, 
whicli  they  contend  is  a  regular 
weekly  news  service  for  tlie  dis- 
semination of  information  to  the 
jHiblic,  and  analogous  to  a  regular 
newspaper  or  at  least  to  a  weekly 
newspajK'r  or  magazine. 

In  my  opinion  there  is  no 
foundation  for  an}'  legal  distinc- 
tion between  the  two  cases.  The 
"information"  which  is  being 
"disseminated"  by  defendants' 
films  is  of  the  same  character  as 
that  "disseminated"  by  the  Binns 
films.  The  fact  that  the  de- 
fendants' films  are  photographs 
of  actual  current  eveiits  and 
are  called  "Universal   Animatal 

within  the  protection  extended  to 
newspapers  by  the  cases  of  Colyer 
V.  Fox  Publishing  Co.,  162  A  pp. 
Div.  297,  and  Jcjfnct  v.  N.  Y. 
Evening  Juurnal  Publishing  Co., 
67  Misc.  .j70,  on  which  defend- 
ants rely.  I  do  not  understand 
that  in  those  cases  the  courts 
founded  their  tlecisions  ui)on  the 
constitutional  i)rotection  of  the 
freedom  of  the  press,  and  defend- 
ants expressly  disclaim  that  they 
are  relying  upon  such  constitu- 
tional provisions.  As  I  under- 
stand those  cases  the  courts 
merely  held  that  the  I>egislature 
did  not  intend  bj'  chapter  l'.i'2 
of  the  Laws  of  15)03,  now  .sections 
50  and  51  of  the  Civil  Rights 
Law,  to  extend  the  prohibitions 
of  that  statute  to  newspapers. 
But  that  is  very  far  from  holding 
that  such  a  service  as  the  de- 
fendants conduct  is  a  ncwspa|X'r 
or  tiiat  the  acts  complainotl  of  are 
not  prohibited  by  the  statute. 
Tlie  Supremo  Court  of  tlie  I'nited 
States  lias  recently  had  occasion 
to  consider  the  character  of  sucli 



a  service  in  the  case  of  Mutual 
Film  Corporation  v.  Industrial 
Commission  of  Ohio,  236  U.  S.  230, 
where  the  question  was  involved 
of  the  constitutionaUty  of  a 
censorship  of  a  service  which 
included  (p.  232)  "events  of 
historical  and  current  interest — 
the  same  events  which  are  de- 
scribed in  words  and  by  photo- 
graphs in  newspapers,  weekly 
periodicals,  magazines  and  other 
publications,  of  which  photo- 
graphs are  promptly  secured  a 
few  days  after  the  events  which 
they  depict  happen,  thus  regularly 
furnishing  and  publishing  news 
through  the  medium  of  motion 
pictures  under  the  name  of  "Mu- 
tual Weekly,"  and  said  (p.  244): 
"It  cannot  be  put  out  of  view 
that  the  exhibition  of  moving 
])ictures  is  a  business  pure  and 
simple,  originated  and  conducted 
for  profit,  like  other  spectacles, 
not  to  be  regarded,  nor  intended 
to  be  regarded  by  the  Ohio  Con- 
stitution, we  think,  as  part  of 
the  press  of  the  country  or  as 
organs  of  public  opinion." 

The  defendants  argue  that  they 
are  not  using  the  plaintilT's 
name  and  picture  "for  adver- 
tising purposes  or  for  the  pur- 
poses of  trade."  I  cannot  agree 
with  them.  The  films  arc  used 
in  the  defendants'  regular  busi- 

ness, for  purposes  of  profit, 
and  the  posters  are  used  to  ad- 
vertise the  films  and  to  induce 
the  public  to  patronize  the  the- 
atres where  the  films  are  exhibited. 
In  other  words,  the  defendants 
are  exploiting  the  plaintiff's 
name  and  picture  in  their  busi- 
ness for  profit,  and  even  if  they 
are  incidentally  disseminating  in- 
formation as  to  current  news  of 
the  day,  the  plaintiff  has  the 
right  to  object  and  to  an  injunc- 
tion against  the  continuance  of 
such  conduct.  In  Blnns  v.  Vita- 
graph  Co.,  supra,  the  court  said 
(p.  58): 

"We  hold  that  the  name  and 
picture  of  the  plaintiff  were 
used  by  the  defendant  as  a  matter 
of  business  and  profit  and  con- 
trary to  the  prohibition  of  the 
statute.  It  is  urged  that  there  is 
danger  of  serious  trouble  in  the 
practical  enforcement  of  any  rule 
which  may  be  adopted  in  con- 
struing and  enforcing  the  statute 
so  far  as  it  relates  to  purposes 
of  trade.  If  there  is  any  basis  for 
the  suggestion  of  danger  in  en- 
forcing a  part  of  the  statute 
under  consideration  it  is  the  duty 
of  the  Legislature  to  repeal  such 
part  thereof,"  etc. 

As  the  court  said  in  Almind  v. 
8ea  Beach  Railway  Co.,  157  App. 
Div.    230,    232:    "The    right    of 



privacy  under  tlio  statute  caiuiut 
be  invaded  for  purposes  purely  in- 
formative or  redemptive,  whether 
the  altruist  We  entirely  a  chari- 
table envoy  or  a  railway  company. 
No  cause  is  so  exalted  that  it 
may  allure  by  exposing  the  por- 
trait of  a  i)erson  to  the  public 

The  defendants  argue  that  if 
this  motion  is  granted  it  will 
seriously  interfere  with,  if  not 
destroy,  their  business,  which 
gives  information  as  to  current 
events  and  innocent  amusement 
to  thousands,  and  they  set  out 
at  length  the  services  they  are 
rendering  to  the  government  and 
to  the  Red  Cross  in  connection 
with  the  present  war  and  the 
activities  of  good  citizens  in  con- 
nection therewith.  Even  if  this 
were  true,  the  remedy  is  by  an 
api)eal  to  the  Legislature,  but  the 
results  they  pretend  to  fear  are 
not  likely  to  follow.  While  I 
am  not  called  on  t(^  decide  the 
point,  it  is  not  probable  that  any 
court  will  enjoin  the  use  of  moving 
picture  films  of  current  events  of 
real  public  importance,  because 
they  happen  as  a  mere  incident 
to  include  among  many  the  pic- 
ture of  an  individual.  As  the 
court  said  in  the  Binns 
(p.  57):  "It  is  not  neces.sary  in 
this  opinion  to  discuss  the  tiucs- 

tion  whether  a  {jcrson,  firm  or 
corporation  would  \)c  liable  under 
the  statute  for  making  and  using 
a  picture  of  a  living  |x;rson  when 
it  is  included  in  a  picture  of  an 
actual  event  in  which  such  {X-'r- 
son  was  an  actor,  and  such  pic- 
ture is  a  mere  incident  to  the 
actual  event  portrayed.  The 
use  of  the  plaintiff's  name  and 
picture,  as  shown  by  the  testi- 
mony in  tliis  case,  was  not  a 
mere  incident  to  a  general  picture 
representative  of  the  author's  un- 
derstanding of  what  occurred  at 
the  wreck  of  the  RcpubUc." 

There  is  a  clear  distinction  be- 
tween a  merely  incidental  and 
fortuitous  use  of  an  individual's 
picture  as  an  incident  to  some  im- 
portant public  event,  and  the 
exploitation  of  that  individual 
as  the  important  and  central  part 
of  an  event  which  is  not  of 
real  public  importance,  however 
gr(>at  may  be  the  public  interest 
therein.  In  this  case  it  is  clear 
that  Mrs.  Humiston's  name  and 
picture  are  the  main  pwint  of 
that  part  of  defendants'  film  re- 
lating to  the  Cniger  murder,  and 
that  the  tlefendants  are  seeking 
by  the  use  of  her  name  and  pic- 
ture to  make  money  out  of  her 
reputation  and  prominence.  She 
is  not  the  commander  of  an  army, 
a  visiting  amliassador  or  even  a 



sent,  weave  fiction  about  it  and  represent  the  whole  in 
motion  pictures. ^^ 

public  official,  but  a  private 
citizen  practicing  her  profession 
as  a  member  of  the  bar,  who  is 
entitled  to  be  protected  in  her 
right  of  privacy. 

It  is  conceded  that  the  plaintiff 
gave  no  written  consent  to  the 
use  of  her  name  and  picture, 
and  although  it  is  claimed  that 
she  orally  consented  she  denies 
that  fact,  and  it  is  immaterial 
on  this  motion.  So  also  the 
fact,  if  it  be  a  fact,  that  her  name 
and  picture  have  appeared  fre- 
quently with  her  consent  in  the 
daily  newspapers  is  not  material 
on  this  motion.  All  these  facts 
may  perhaps  be  material  on  the 
question  of  her  damages,  but  that 
is  not  before  me  now.  As  Judge 
Gray  said  in  the  case  of  Roberson 
V.  Rochester  Folding  Box  Co.,  171 
N.  Y.  538,  at  p.  5GG:  "It  would 
be,  in  my  opinion,  an  extraor- 
dinary view  which,  while  con- 
ceding the  right  of  a  person  to  be 
protected  against  the  unauthor- 
ized circulation  of  an  unpublished 

lecture,  letter,  drawing,  or  other 
ideal  property,  yet,  would  deny 
the  same  protection  to  a  person 
whose  portrait  was  unauthor- 
izedly  obtained  and  made  use  of 
for  commercial  purposes.  The 
injury  to  the  plaintiff  is  irrepar- 
able, because  she  cannot  be 
wholly  compensated  in  damages 
for  the  various  consequences  en- 
tained  by  defendant's  acts.  The 
only  complete  relief  is  an  in- 
junction restraining  their  con- 
tinuance. Whether,  as  incidental 
to  that  equitable  relief,  she  should 
be  able  to  recover  only  nominal 
damages  is  not  material,  for  the 
issuance  of  the  injunction  does 
not,  in  such  a  case,  'depend  upon 
the  amount  of  the  damages  in 
dollars  and  cents." 

Motion  for  injunction  during 
tlie  pendency  of  this  action 
granted  on  plaintiff  giving  an 
undertaking  in  the  sum  of  $2,500. 

'^  Binns  v.  Vitagraph  (1913), 
210  N.  Y.  51;  103  N.  E.  1108. 


THE    PUBLIC    (continued) 

Tlieatre  Proprietor's  Duty 

Sec.  !)1.  Kiglil  to  exclude  patrons. 

92.  Liai)ility  for  injuries  sustained  l)y  i)atron.s— In  general. 
O.'i.  Falling  over  balcony. 

94.  .Seats  and  floors. 

95.  Tripping  in  darkened  theatre — aisles — stejxs — exitw. 

96.  Articles  dropping. 

97.  Wild  animals. 

98.  Crowds. 

99.  Hurt  by  performer. 

100.  Miscellaneous  accidents. 

101.  Acts  of  strangers. 

102.  Assault. 

103.  Who  is  liable. 

104.  Property  lost  in  theatre. 

Section  91. — Right  to  exclude  patrons. 

The  e.xc'lu.siou  of  certain  people  or  ela.sses  of  people  from 
the  motion  picture  theatre  i.s  another  one  of  the  j)ul)hc's 
rights  wliich  has  assumed  considerable  importance,  antl 
whicli  has  l)een  the  subject  of  statutory  enactment. 

Under  the  common  law  a  theatre  i)roprietor  could  ex- 
clude whom  he  wished.'     It  was  held  in  the  leading  case 

'ColUxkr  V.  Ilm/man  (1905),  v.  Ward  (1911),  203  X.  V.  .T)!; 
18.3  N.  Y.  2.50;  76  N.  E.  20;  96  X.  K.  736;  I'coplc  ix  rcl. 
1  L.  R.  A.  (X.  S.)  1188;  Aaron     Burnham   v.    Fh/nn    (1!)07).    180 




of  Purcell  V.  Daly  that  the  ticket  of  admission  was  merely 
a  revocable  Ucense,  and  that  the  only  penalty  which  the 
proprietor  of  the  theatre  would  incur  for  its  revocation 
would  be  the  cost  of  the  ticket  and  incidental  loss  suffered.^ 
As  the  relationship  is  a  purely  contractual  one,  a  refusal  to 

N.  Y.  180;  82  N.  E.  169;  People  v. 
Ki7ig    (1888),    110    N.    Y.    418; 
18    N.    E.    245;    Luxemburg    v. 
Keith  (1909),  64  Misc.   (N.  Y.) 
69;  117  N.  Y.  Supp.  979;  Purcell 
V.  Dahj  (1886),  19  Abb.  N.  C. 
(N.  Y.)  301;  Marrone  v.  Wash. 
Clvb  (1912),  227  U.  S.  633;  33 
Sup.  Ct.  401;  Wood  v.  Leadbitter 
(Eng.)  (1845),  13  M.  &  W.  838; 
Shubert  V.  Nixon  (1912),  83  N.  J. 
L.  101;  83  Atl.  369;  McCrea  v. 
Marsh  (1858),  12  Gray  (Mass.), 
211;  Burton  v.  Schepf  (1861),  1 
Allen   (Mass.),  133;   Johnson    v. 
Wilkinson   (1885),  139  Mass.  3; 
29  N.  E.  62;  Greenburg  v.  West. 
Turf  (1903),  140  Cal.  357;  73  Pac. 
1050;  148  Cal.  126;  82  Pac.  684; 
aff'cl  204  U.  S.  359;  27  Sup.  Ct. 
3S4;   Taylor  v.  Cohn   (1906),  47 
Ore.  538;  84  Pac.  388;  Meisner 
V.  Detroit  (1908),  154  Mich.  545; 
118  N.  W.  14;  Bucnzlc  v.  Newport 
Ass'n  (1908),  29  II.  I.  23;  68  Atl. 
721;    Homey    v.    Nixon    (1905), 
213  Pa.  20;  61  Atl.  1088;  W.  W.  V. 
Co.  V.  Black  (1912),  113  Va.  728; 
75   S.   E.   82;    Taylor   v.    Waters 
(Eng.),  7  Taunt.  374;  Younger  v. 

Judah  (1892),  111  Mo.  303;  19 
S.  W.  1109;  Boswell  v.  Barnum 
(1916),  185  S.  W.  (Tenn.)  692; 
Rex  V.  Jones  (Eng.)  1  Leach  C.  C. 
204;  Pearce  v.  Spaulding  (1882), 
12  Mo.  App.  141. 

^Purcell  V.  Daly  (1886),  19 
Abb.  N.  C.  (N.  Y.)  301.  "The 
proprietor  of  a  theatre  has  a  per- 
fect right  to  say  whom  he  will  or 
will  not  admit  to  his  theatre, 
and  should  any  one  apply  at 
the  box-office  of  a  theatre  and 
desire  to  purchase  tickets  of 
admission,  and  be  refused,  there 
can  be  no  ([uestion  that  he  would 
have  no  cause  of  action  against 
the  proprict(jr  of  the  theatre  for 
such  refusal.  And  in  the  same 
way,  if  tickets  are  sold  to  a  person 
the  proprietor  may  still  refuse 
admission,  in  which  case  the 
proprietor  would  be  compelled 
to  refund  only  the  price  paid  for 
the  tickets  of  admission,  together 
with  such  other  oxjiense  as  the 
party  might  iiave  l)een  put  to, 
but  which  exixinse  must  be 
directly  connected  with  the  issuing 
of  the  ticket  of  admission." 



admit  one  who  lias  purchased  a  ticket  is  a  breach  of  the 
contract  and  nothin<5  niore.^ 

Not  only  may  the  proprietor  refuse  admission  to  a 
ticket  holder,  but  he  ma}'  refuse  in  the  absence  of  a  pro- 
hibilory  statute,  to  sell  a  ticket  to  any  particular  person. 
Under  the  doctrine  that  tlu^  theatn;  is  a  purely  private 
enterprise,  the  proprietor  may  contract  with  whomsoever 
he  pleases. 

He  may  also  attach  any  condition  to  the  sale  of  the 
ticket  that  he  sees  fit,  and  where  the  ticket  is  sold  sub- 
ject to  a  condition  that  it  be  not  resold  on  the  sidewalk 
by  a  speculator,  and  such  condition  is  brought  to  the 
attention  of  one  buying  it  at  or  before  its  purchase,  the 
proprietor  may  exclude  the  purchaser  from  admission.^ 

^  Homey  v.  Nixon  (1905),  2i;{ 
P:i.  20;  01  All.  108S;  1  L.  R.  A. 
(N.S.)  1184.  "Tl»e  proprietor  of 
a  theatre  is  a  private  individual, 
eiig;iKe(.l  in  a  strictly  i)rivate  busi- 
ness, wliicli,  thougli  for  entertain- 
ment of  the  public,  is  always  lim- 
ited to  those  wlioni  lie  may  aj^ree 
to  admit  to  it.  There  is  no  duty 
as  in  the  case  of  a  common  carrier, 
to  admit  everyone  vviio  may  apply 
and  be  willing  to  pay  for  a  ticket, 
for  the  theatre  proprietor  has  ac- 
quired no  peculiar  rights  and  priv- 
il(>ges  from  the  slate,  and  is  tlicrc- 
forc  under  no  imphed  obligation  to 
serve  the  pul)lic.  When  he  sells  a 
ticket  he  creates  contractual  re- 
lations with  the  holder  of  it,  and 

whatever  duties  on  liis  part 
grow  out  of  these  relations,  he  Is 
bound  to  perform  or  respond  in 
damages  for  the  breach  of  his 
contract,  if  it  is  of  that  only  that 
complaint  can   be  made." 

Weis  V.  Skinner  (101.')),  178 
S.  W.  (Tex.)  34. 

(hi  the  question  whether  one  who 
hid/s  a  scat  may  demand  Ifie  re- 
liini-  (if  his  money  if  the  house  is 
full  see:  Lewis  v.  Arnold  (Eng.) 
(1H.30),  4  C.  &  P.  354,  which  holds 
that  he  is  entitletl  to  a  refund  of 
his  money. 

Wollislcr  V.  Ilayman  (1()05), 
18,3  X.  V.  2.-)0;  76  N.  E.  20;  1  L.  R. 
A.  (X.  8.)  1188. 



And  he  may  revoke  the  Ucense  either  before  or  after  ad- 
mission ■'  and  may  even  eject  him.^ 

The  mere  fact  that  the  theatre  is  Ucensed  does  not 
make  it  a  pubhc  or  quasi-pubHc  institution.  The  hcense 
conferred  is  not  in  the  nature  of  a  franchise  as  in  the  case 
of  a  common  carrier/  for  in  the  case  of  the  latter  the  state 
delegates  certain  of  its  rights  and  powers  to  the  holder 
of  the  license,  whereas  in  the  case  of  a  theatre  the  hcense 
is  in  the  nature  of  a  special  tax.^ 

To  overcome  the  evils  which  grew  out  of  the  applica- 

^Boswell  V.  Bamum  &  Bailey 
(1916),  185  S.  W.  (Tenn.)  692. 
"Amusement  places  are  private 
enterprises,  and  the  law  does  not 
confer  upon  the  public  the  right 
to  demand  admission  thereto. 
No  legal  duty  is  breached  by 
refusing  admission  to  anyone, 
or  excluding  anyone  after  ad- 
mission. If  such  person  had 
bought  a  ticket  there  is  a  breach 
of  contract,  but  there  is  no  tort." 

«  Marrone  v.  Wash.  Jockey  Club 
(1912),  227  U.  S.  633;  33  Sup.  Ct. 
401;  43  L.  R.  A.  (N.  S.)  961. 
"The  fact  that  the  purchase  of 
the  ticket  made  a  contract  is 
not  enough.  A  contract  binds 
the  person  of  the  maker,  but  does 
not  ('reat(!  an  interest  in  the  prop- 
erty that  it  may  concern,  unless 
it  also  operates  as  a  conveyance. 
.  .  .  B\it  if  it  did  not  create  such 
an  interest,  that  is  tf)  say,  a  right 

in  rem,  valid  against  the  land- 
owner and  third  persons,  the 
holder  had  no  right  to  enforce 
specific  performance  by  self-help. 
His  only  right  was  to  sue  upon 
the  contract  for  the  breach." 

The  court  upholds  the  right  of 
the  proprietor  to  eject  the  ticket 
holder  after  the  revocation  of  the 
license  if  he  refuses  to  leave  the 
premises.  To  the  same  effect: 
People  V.  Hart  (1910),  56  111. 
App.  523;  Shubert  v.  Nixon  (1912), 
83  N.  J.  L.  101;  83  Atl.  369. 

'' Collister  v.  Hayman  (1905), 
183  N.  Y.  250;  76  N.  E.  20.  "A 
theatre  may  be  licensed,  like  a 
circus;  but  the  license  is  not  a 
franchise,  and  does  not  place 
the  proprietors  under  any  duty 
to  the  publi(r  or  under  any  obli- 
gation to  keep  the  place  open." 

Ulorney  v.  Nixnn  (1905),  213 
Pu.  20;  61  Atl.  1088. 

RIGHT    TO    EXfU'DK    PATRONS  2(>.' 

tion  of  the  foroKoiiis  d<)ctriiK%  tlio  Federal  Government '' 
and  the  several  states  have  enacted  statutes  making  it 
unlawful  generally  to  discriminate  against  members  of 
th(^  public  because  of  their  "race,  creed  and  color."  These 
statutes  being  in  derogation  of  the  conmion  law,  have 
been  strictly  construed,  and  unless  the  exclusion  has  been 
})(>cause  of  the  race,  creed  or  color  of  the  individual  ex- 
cluded, he  has  no  remedy  against  the  pn^prietor. 

This  proposition  is  singularly  illustrated  in  Woolcott  v. 
Shubert '°  where  the  defendants  sought  to  exclude  from 
their  theatres  a  critic  of  the  "New  York  Times"  on  the 
ground  that  his  criticisms  of  their  productions  had  been 
highly  displeasing  to  them.  In  New  York  there  was  a 
statute  at  the  time  when  this  action  was  brought  which 
provided  that  "all  persons  within  the  jurisdiction  of 
this  State  shall  be  entitled  to  the  full  and  equal  accom- 
modations, advantages  and  privileges  of  any  place  of 
public  accommodation,  resort  or  amusement,  subject 
only  to  the  conditions  and  limitations  established  by 
law  and  applicable  alike  to  all  persons."  '^  The  statute 
further  provided  that  no  person  shall  directly  or  indirectly 
refuse  to  accord  the  same  acconmiodations,  advantages 
and  privileges  to  any  person  on  account  of  his  "race, 
creed  or  color." 

The  Court  of  Appeals  held  that  the  management  was 
limited  in  its  undoubted  right  to  exclude  the  plaintiff 
only  by  the  Civil  Rights  Law  "except  for  reasons  ap- 
phcable  alike  to  all  citizens  of  every  race,  creed  or  color." 

» Civil  Rights  Act,  18  Stat.  335.  "  Uws  1913,  Chap.  265  (New 

^°  Woolcott    V.    Sfnibcrt    (1916),      York). 
217N.  Y.  212;  111  N.  E.  829. 


Since  Woolcott  was  a  critic  writing  for  pay,  and  the  dis- 
crimination against  him  was  not  based  on  race,  creed  or 
color,  but  was  based  on  his  criticisms  of  the  defendants' 
plays,  the  court  held  that  he  could  not  enjoin  the  de- 

The  reasoning  in  that  case  follows  closely  the  prin- 
ciples laid  down  in  the  Civil  Rights  cases,  ^^  where  the 
Federal  Statute  was  held  to  be  constitutional,  and  wherein 
it  was  decided  that  in  the  absence  of  any  other  statutes 
preventing  them,  proprietors  could  exclude  from  their 
theatres  persons,  if  the  exclusion  was  based  on  some- 
thing other  than  race,  creed  or  color. 

On  the  other  hand,  the  Civil  Rights  Statute  of  California 
provides  that  any  orderly  person  presenting  a  ticket  of 
admission  acquired  by  purchase  is  entitled  absolutely 
to  admission.  It  was  there  held  that  such  ticket  holder 
on  being  excluded  from  a  race  course,  was  entitled  to 
recover  the  penalty  under  the  statute,  although  his  ex- 
clusion had  been  based  upon  some  ground  other  than 
race,  creed  or  color.  ^'* 

'2  See:  Grannan  v.  Weslchesler  conspiracy  to  prevent  one  from 
/2ac.  i4ss'n  (1897),  153  N.  Y.  449;  exercising  his  lawful  trade,  and 
47  N.  E.  896.  it  was  held  that  they  could  law- 
People  ex  rel.  Burnharn  v.  Flynn  fully  exclude  such  critic  from  their 
(1907),  189  N.  Y.  1<S();  82  N.  K.  theatres. 

109.    An  as-sociation  of  theatrical  "Civil    Rights    (1883), 

managers  combining  to  exclude  a  109  U.  S.  3. 

critic  from  witiiessiiig  their  p(>r-  ^*Grecnbcrg    v.    Western    Turf 

formances  on  tlic  ground  that  his  Assoc'n    (1903),    140    Cal.    357 

criticisms    were    scurrilous    and  73    Pac.     1050;    118    C/al.     12G 

highly   unfair   was   held   not   to  82  Pac.  G84;  alf'd  204  U.  S.  359 

violate  the  law  with  respect  to  27  Sup.  Ct.  384. 


While  it  was  tho  atn-optod  rulo  in  England  since  184") 
when  Wood  v.  Ledbitter  was  decided,  that  a  ticket  was  a 
revocable  license  and  could  he  revoked  either  before  or 
after  entry  into  tho  theatre,  the  recent  English  case  of 
Hiirsl  V.  Ficlurc  Theatres  has  modified  this  rule.''  There 
plaintiff  had  purchased  a  ticket  entitling  him  to  an  un- 
reserved seat,  entered  the  theatre,  and  occupied  a  seat 
therein.  Shortly  after  the  commencement  of  the  per- 
formance he  was  requested  to  leave  the  auditorium,  and 
uiK)n  his  refusal  to  do  so,  force  was  threatened,  and  he 
walked  out. 

The  prevailing  opinion  held  that  "the  hcense  was  a 
license  to  enter  the  building  and  see  the  spectacle  from 
its  commencement  until  its  termination.  .  .  .  The  de- 
fendants had,  I  think,  for  value  contracted  that  the 
j^laintiiT  should-  see  a  certain  spectacle  from  its  com- 
mencement to  its  termination.  They  broke  that  con- 
tract, and  it  was  a  tort  on  their  part  to  remove  him."  ^^ 

The  l']nglish  rul(\  as  estal)lished  by  Hurst  v.  Picture 
Tlicaires  is  that  a  theatre  ticket  is  a  license  coupled  with  a 

^'-Iluist    V.    Piclure    TJieaires,  tniftual  relation  existing  between 

Ltd.  (ICiiR.)  (1915), 8;}  L.  J.  (K.  B.)  himself  and  the  proprietor  of  the 

l.s;i7;  111  L.  T.  1)72;  30  T.  L.  U.  tlicatre,  and  might  maintain  an 

642;  oS  Sol.  Jo.  731).  action  on  the  eontract  a.s  well  as 

'« The  Iliirst  v.  Piclure  Theatres  for    a.ssault    if    he    was    forcibly 

Ltd.    decision    was    followed    in  ejected.     Dissenting  opinion   by 

Barn-well    v.     Nalional    Amuse-  McPhillips,  J.  A.,  to   the  effect 

ment   Cn.    (lOng.),    23    1).    L.    R.  that  the  i)ro|)rietor  of  the  theatre 

615;  31  W.  L.  K.  512.    A  patron  has  "complete  control  over  tliose 

once  having  entered  and  taken  who  are  iiermitted  to  attend"  the 

the  proper  .seat  wa-s  held  entitled  entertainment,  and  may  eject  pa- 

to  retain  his  seat  under  the  con-  tron  if  he  refuses  to  leave  theatre. 


grant — the  grant  to  see  the  spectacle,  and  the  hcense  to 
go  upon  the  premises  to  enjoy  the  grant;  and  for  that 
reason  it  may  not  be  revoked. 

The  American  rule  is,  by  the  great  weight  of  authority, 
that  the  purchase  of  the  ticket  confers  but  a  license  rev- 
ocable at  any  time,  and  that  this  right  is  hmited  only  in 
so  far  as  it  may  be  affected  by  the  various  Federal  and 
state  statutes. 

To  exclude  a  negro  from  a  theatre  is  to  violate  the  pro- 
visions of  the  statute.'^  And  it  was  even  held  that  where 
a  negro  was  not  excluded,  but  was  asked  to  exchange  the 
seat  purchased  by  him  for  a  seat  in  another  part  of  the 
house,  there  was  equally  a  violation  of  the  statute. ^^ 
It  was,  however,  held  in  another  state  that  where  the 
accommodations  afforded  by  the  part  set  aside  for  the 
use  of  the  negro  were  equal  to  that  afforded  to  the  other 

"  Joyner  v.  Moore  (1913),  152  elude  or  authorize  the  exclusion 

A.  D.  (N.  Y.)  266;   136  N.  Y.  of  plaintiff  and  when  he  on  the 

Supp.    578;     Cremore    v.    Huber  contrary  had  made  rules  to  the 

(1897),  18  A.   D.   (N.  Y.)    231;  contrary    and    customarily    per- 

45  N.   Y.  Supp.   947;  Joseph  v.  mittcd  negroes  to  enter. 

Bidwell  (1876),  28  La.  Ann.  382;  Hull  v.  GSth  St.  AiJiusement  Co. 

People  V.  King  ilSSS),  HON.  Y.  (1913),    144    N.    Y.    Supp.   318. 

418;   18  N.   E.  245;  Johnson  v.  Action  was  brought  under  Civil 

Sparrow  (Can.),  Q.  J.  K-  15  S.  C.  Rights  Law  because  of  refusal  to 

104;  Q.  J.  R.  8  Q.  B.  379.  sell  seat  for  orchestra  balcony  to 

Thomas    v.    Willia7)is    (1905),  negro.    Held  there  was  no  viola- 

48  Misc.  (X.  Y.)  615;  95  N.  Y.  tion   where    all    the   seats    were 

Sui)p.  592.    A  negross  was  denied  already  sold  at  the  time  j)laintiff 

admission  to  a  theatre  because  of  sought  to  purchase  tiu;  seat. 

her   color.     Held   that   the   pro-  '^  Bnylles  v.  Curry  (1889),  128 

prietor  was  not  liable  when  the  111.  2S7;  21  N.  1'].  595. 
defendant  did  not  personally  ex- 

MAHII.ITV    von    INMIUIES    SUSTAINED    HV    PATRON'S      29(» 

portions  of  the   llicatrc,   tliore  was  no   violation  of  tho 
statute. " 

Section  92. — Liability  for  injuries  sustained  by  patrons — 
In  general. 

While  tlie  proprietor  of  the  theatre  is  not  regarded  as 
an  insurer  of  the  safety  of  his  patrons  -°  he  is  recjuired  as 
a  general  nile  to  exercise  reasonable  care  and  jrrudence 
in  maintaining  his  premises  in  a  safe  condition.-'  In 
many  of  the  states  the  measure  of  this  duty  has  been  de- 
fined as  analogous  to  that  owed  by  the  owner  of  a  ten- 
ement house.  The  trend  of  the  decisions,  however,  has 
of  late  years  been  away  from  this  doctrine,  and  indications 
are  not  wanting  that  a  high  degree  of  care  is  imposed 
upon  the  proprietor,  in  keeping  with  the  peculiar  condi- 
tions that  exist  when  great  crowds  gather  for  the  purpose 
of  recreation  and  amusement. 

"  Wliere,  however,  a  person  invites  others  to  come  upon 
his  premises  to  view  an  exhibition  conducted  by  him  for 
hire,  he  warrants  the  reasonable  safety  of  the  place,  and 
by  reason  of  that  warranty  is  not  under  a  passive  duty 

^^Commonwealth      v.       George  his    patrons,   wits   not,   however, 

(10ir)),(U  Pa.  SuiKjr.  Ct.  412.  held  to  be  an  insurer  and  iKuind 

See    also:    Younger   v.  Jiuhih  to  anticipate  the  improbable. 

(1892),  111  Mo.  303;   19  S.  W.  =>' See:     Noack     v.      Wosdick 

1109;  IG  L.  R.  A.  558.  (1913),  182  111.  App.  425,  where  a 

^iicc:  ]y ells  \.  Minn.  Baseball  manager     of     a     restaurant     or 

(1913),  122  Minn.  327;  142  X.  W.  summer  garden  \v;us  held  bound  to 

706,  where  tlie  owner  of  a  base-  exercise  reasonable  care  to  keep 

ball  jwrk  while  required  to  use  the   premises    in    a    safe    eondi- 

care   and    precaution   to   protect  tion. 



merely,  but  is  under  an  active  duty,  to  guard  against  all 
risks  which  might  reasonably  be  anticipated."  -- 

He  is  bound  to  inform  himself  of  the  condition  of  the 
premises  -^  and  to  ascertain  their  special  fitness  for  the 
accommodation  of  surging  crowds  and  other  unusual 
occurrences  that  the  owner  of  other  property  need  not 
generally  anticipate.  He  is  responsible  for  structural  de- 
fects -^  as  well  as  for  the  acts  of  omission  and  commission 

22  Redmond  v.  NaVl  Horse  Show 
Ass'n  <1912),  78  Misc.  (N.  Y). 
383;  183  N.  Y.  Supp.  364.  Plain- 
tiff as  a  patron  while  viewing  an 
exhibition  was  struck  by  a  heavy 
gate  which  fell  from  the  impact 
with  a  horse  which  had  become 
unmanageable.  Held  negligence 
on  the  part  of  plaintiff,  upon 
ground  that  defendant  should 
have  reasonably  foreseen  and 
guarded  against  such  an  accident. 

"  Lmk  V.  Peck  (1900),  132  A.  D. 
(N.  Y.)  426;  1 16  N.  Y.  Supp.  1051 ; 
aff'd  199  N.  Y.  546;  93  N.  E.  377. 
"The  owner  of  a  place  of  enter- 
tainment is  charged  with  an 
affirmative  positive  obligation  to 
know  that  the  preinises  are  safe 
for  public  use.  He  may  not  be 
exonerated  merely  because  he  had 
nf)  precise  knowledge  of  the  de- 
f(!Ctiv(!  condition  of  the  place  to 
which  he  invited  the  public." 

'^*  Schnizer  v.  Philips  (1905), 
108  A.  D.  (N.  Y.)  17;  95  N.  Y. 

Supp.  478.  "The  law  is  well 
settled  in  this  state  that  where  a 
party  in  possession  of  premises 
throws  the  same  open  to  the 
public  for  the  purpose  of  gain, 
he  impliedly  warrants  the  prem- 
ises reasonably  safe  for  the  pur- 
poses for  which  they  were  de- 
signed and  where  as  in  the  case 
at  bar,  the  plaintiff  is  injured  by 
the  fall  of  a  structure  which  she 
is  using  at  the  invitation  of  the 
person  in  charge  and  in  the  man- 
ner which  such  person  has  a  right 
to  expect  the  same  would  be  used, 
the  burden  of  explaining  the  ac- 
cident and  of  showing  freedom 
from  negligence  is  upon  the  de- 

See  also:  Ahramovritz  v.  Tenzer 
(1911),  144  A.  D.  (N.  Y.)  170; 
128  N.  Y.  Supp.  951;  Fox  v. 
Buffalo  Park  (1S97),  21  A.  D. 
(N.  Y.)321;47N.  Y.  Supp.  788; 
aff'd  163  N.  Y.  559;  57  N.  E. 


OH  the  part  of  ageiitsi  and  sLTVaiits  wliilu  t'ligaged  in  the 
lju.siness  of  operating  the  tlieatre.-'  And  that  duty  ex- 
tends not  alone  to  those  who  pay  the  i)rice  of  admission 
to  his  premises,  but  also  to  all  others  upon  the  same  by 
his  invitation.-'' 

This  liability  on  the  part  of  the  owner  of  the  building 
is  not  evaded  by  a  lease  of  the  structure,  for  even  here 
the  courts  have  gone  so  far  as  to  read  into  the  lease  an 

^''Oakland  v.  Bingham  (1892), 
4  Ind.  App.  545;  31  N.  E.  383; 
Dickson  V.  Waldron  (1893),  135 
Ind.  507;  34  X.  K.  .506;  35  N.  E.  1 ; 
Fowler  v.  Holmes  (1889),  3  N.  Y. 
Supp.  816. 

Kcssler  v.  Dcutsch  (1908),  44  (N.  Y.)  209;  88  N.  Y.  Supp. 
846.  The  master  is  responsible 
for  an  act  of  the  servant  done 
within  the  general  scope  of  the 
employment  while  enp;afj;ed  in  the 
master's  business  and  to  further 
it,  whether  the  act  be  done  negli- 
gently, wanlonly  or  willfully.  The 
burden, liowever,  is  on  the  plaintiff 
to  establish  that  the  servant 
acted  within  the  scope  of  his 

See  in  this  connection:  Deyo 
V.  Kingston  Consolidated  R.  R.  Co. 
(1904),  94  A.  D.  (X.  Y.)  .578;  88 
N.  Y.  Supp.  487.  Plaint ilT  was 
injurefl  throu{?h  neglip'nce  of 
employes  of  a  fireworks  manu- 
facturer giving  e.\liibition  in  de- 

fendant's amu.sement  park.  De- 
fendant not  held  liable  since 
exhibition  was  done  entirely  by 
manufacturer's  employes  and 
defendant  had  no  control  nor 
a,ssumed  to  exercise  any  control 
over  them.  See  also  Crowley  v. 
Rochester  Fire  Works  (1906),  183 
N.  Y.  353;  76  X.  E.  470. 

See  also  Section  102. 

"  Owens  V.  Assoc.  Realties 
(1911),  81  X.  J.  L.  586;  80  Atl. 
325.  Plaintiff,  a  minor,  was  per- 
mitted to  enter  defendant's  park 
by  defendant's  employes,  with- 
out paying  an  admission  fee,  in 
exchange  for  which  plaintiff 
rendered  certain  services.  Held 
that  plaintilT  was  there  at  de- 
fendant's invitation  and  that 
defendant  was  thereby  under  an 
obligation  to  exercise  care  for  his 

See  also  Turgeon  v.  ConrwcticiU 
Co.  (1911),  84  Conn.  538;  SO  Atl. 



implied  covenant  by  the  lessor  that  the  premises  are  fit 
and  safe  for  the  pm-poses  for  which  they  are  intended  to 
be  used.-^ 

"Fox  V.  Buffalo  Park  (1897), 
21  A.  D.  (N.  Y.)  321;  47  N.  Y. 
Supp.  788;  aff'd  163  N.  Y.  559; 
57  N.  E.  1109.  "While  it  is  un- 
doubtedly true  in  ordinary  cases 
in  the  leasing  of  buildings  that 
there  is  no  imphed  warranty  on 
the  part  of  the  lessor  that  the 
buildings  are  fit  and  safe  for  the 
purposes  for  which  they  are 
leased,  the  rule  is  different  in 
regard  to  buildings  and  structures 
in  which  public  exhibitions  and 
entertainments  are  designed  to  be 
given  and  for  admissions  to  which 
the  lessors  directly  or  indirectly 
receive  compensation.  In  such 
cases  the  lessors  or  owners  of  the 
buildings  or  structures  hold  out 
to  the  public  that  the  structures 
are  reasonably  safe  for  the  pur- 
poses for  which  they  arc  let  or 
used,  and  impliedly  undertake 
that  due  care  has  been  exercised 
in  the  erection  of  the  buildings. 
Francis  v.  Cockrcll  (I'-iig.)  (1870), 
L.  R.  [5  Q.  B.]  501;  Swords  v. 
Edgar  (1874),  59  N.  Y.  28; 
Camp  v.  Wood  (1879),  76  N.  Y. 
92;  Beck  v.  Carter  (1877) ,  68  N.  Y. 
283;  Crotc  v.  C.  etc.  II.  It  (Eng.) 
(1848),  2  K.xch.  251;  ('nmphell  v. 
Portland   Sugar    Co.    (1873),    62 

Me,  552;  Wendell  v.  Baxter 
(1859),  12  Gray  (Mass.)  494." 

Lusk  v.  Peck  (1909),  132  A.  D. 
(N.  Y.)  426;  116  N.  Y.  Supp. 
1051;  afif'd  199  N.  Y.  546;  93 
N.  E.  377.  A  lessor  who  rents 
baseball  grounds  containing  a 
grand  stand  which  was  in  a  de- 
caying condition  at  the  time  of  the 
letting  is  liable  for  injuries  sus- 
tained by  a  patron. 

Where  the  premises  are  in  a 
proper  condition  at  the  time  he 
originally  rents  them  but  be- 
come defective  during  the  term 
of  the  lease  and  where  at  the 
expiration  of  the  lease  he  relets 
the  premises  to  another  party 
without  repairing  the  premises, 
the  lessor  is  liable  to  a  patron 
during  the  period  of  the  second 
lease  for  an  injury  sustained  by 
reason  of  such  defective  condition. 

Barrett  v.  L.  0.  B.  Impr.  Co. 
(1903),  174  N.  Y.  310;  66  N.  E. 
968;  61  L.  R.  A.  829.  Where  the 
lessor  let  a  structure  for  public 
use  which  was  structurally  de- 
fective or  did  not  afford  ade- 
quate protection  to  persons  using 
it  he  was  held  liable. 

See  also:  Edwards  v.  New  York 
(1885),  98  N.  Y.  245. 



But  in  any  event,  whether  l>y  an  iinpHed  covenant 
or  an  express  covenant  by  the  lessor,  there  must  be 
notice,  actual  or  constructive  on  his  part,  ljef<jre  liability 
can  attach.-"^ 

Section  93. — Falling  over  balcony. 

A  fre(iuent  cause  of  accidents  is  the  giving  way  of  the 
railing  of  a  balcony  thereby  precipitating  a  spectator  into 
the  auditorium  below.  It  then  becomes  a  question  of 
fact  to  determine  whether  the  rail  was  insecurely  fastened. 
The  proprietor's  hability  has  been  rigidly  enforced  in 
Canada,  where  even  the  employment  by  him  of  an  expert 
arcliitect  did  not  prevent  the  plaintiff's  recovery.^ 

In  this  country,  recovery  for  such  an  accident  is  difficult, 
as  it  is  not  an  easy  matter  to  prove  the  faulty  or  insecure 
construction  of  the  railing.     In  one  case,  the  lessee  was 

^»  Lowell  V.  SiHuiUliiKj  (1849), 
58  Muss.  277.  A  lessor  of  a  the- 
atre who  coveimnts  to  make 
reasonable  repairs  on  the  leased 
premises  is  not  liable  to  his  le.ssoe 
or  patrons  t)f  the  theatre  for 
a  breach  of  this  covenant  unless 
he  had  knowledge,  actual  or 
constmctive,  of  the  defects  com- 
plained of. 

Sec  also:  Cli/nn  v.  Lyceum 
Theatre  Co.  (l!)i;J),  87  Conn.  237; 
87  Atl.  7i»6.  Contra:  Clyne  v. 
Helmcs  (1898),  Gl  N.  J.  L.  358; 
39  Atl.  767. 

-» Stewart  v.  Cobalt  Curling 
(Can.)  (1909),  19  Out.  I..  R.  007; 

14  Out.  W.  Rep.  179;  afT'd  14 
Ont.  \V.  Rep.  1003.  Plaintiff, 
in  leaning  against  a  railing  of  a 
balcony  where  he  was  seated, 
was  precipitated  to  the  floor  be- 
l(jw  because  of  the  giving  way 
of  the  railing.  //(•/(/  that  defend- 
ant was  liable  notwithstanding 
the  fact  that  he  had  employed  a 
comix'tent  architect  who  super- 
vised the  erection  of  the  rink. 
The  court  quotctl  with  approval 
Francis  v.  Cockrell  (Kng.)  (1870), 
L.  R.  5  Q.  B.  501. 

See  also:  Stcrenson  v.  Glasgow 
Co,-p.  (Scotch)  (1908),  Sc.  Ct. 
Sess.  1034. 



held  not  liable  because  he  had  a  right  to  assume  that 
the  rail  was  properly  constructed.^"  In  another  case, 
the  lessor  was  held  blameless  as  the  lessee  had  weakened 
the  structure.^^  In  a  third  case  the  proprietor  was  per- 
mitted to  maintain  a  balcony  at  an  angle  of  fifty-fiye  de- 
grees without  a  second  guard  rail  in  front  of  the  aisles. ^^ 
At  best  it  is  a  question  of  fact  for  the  jury.^^ 

30  Greene  v.  SeattU  A.  C.  (1910), 
60  Wash.  300;  111  Pac.  157. 
Defendant  leased  an  armory  for 
one  night  only  for  a  sporting  ex- 
hibition, mostly  of  foot  races. 
Plaintiff  was  on  the  balcony. 
During  the  races  the  crowd 
surged  forward  and  caused  the 
railing  to  break,  injuring  plaintiff. 
It  was  not  claimed  that  the  bal- 
cony was  overcrowded,  but  that 
the  posts  that  held  the  raiUng 
were  insecure. 

Hel/l  that  defendant  was  not 
bound  to  have  the  balcony  in- 
spected by  experts,  but  had  a 
right  to  assume  that  the  building 
was  structurally  sound. 

See:  Edwards  v.  N.  Y.  &  //.  R. 
R.  (1885),  98  N.  Y.  245. 

^^Bard  v.  New  York  (1882), 
10  Daly  (N.  Y.),  520.  Where 
th(!  lassee  of  a  hall  had  changed 
the  balcony  anrl  put  in  l)oxos  and 
had  so  weakened  the  structure 
that  it  fell  and  injured  plaintiff, 
the  landlord  was  liold  not  liable, 
the  lassee  being  at  fault  alone. 

'^'^  Dunning  v.  Jacobs  (1895), 
15  Misc.  (N.  Y.)  85;  36  N.  Y. 
Supp.  453.  Plaintiff,  in  changing 
his  seat  in  the  gallery  of  the 
theatre  slipped,  fell  over  several 
rows  of  seats,  over  the  guard  rail 
and  was  precipitated  into  the 
orchestra.  Held  that  the  accident 
was  not  caused  by  defendant's 
negligence,  that  it  was  not  neg- 
ligent for  theatre  manager  not 
to  provide  a  second  guard  rail 
or  to  maintain  the  gallery  at 
an  angle  of  55  degrees. 

See  also:  Camp  v.  Wood  (1879), 
76  N.  Y.  92. 

^^Schofield  v.  Wood  (1898), 
170  Mass.  415;  49  N.  E.  636. 
Plaintiffs,  while  seated  in  the 
gallery  of  defendant's  hall,  leaned 
on  the  rail,  which  gave  way  and 
caused  their  injury.  There  was 
some  evidence  to  show  that  the 
rail  was  im])ro]M>rly  constructed 
and  insecurely  fastened.  Held, 
a  question  for  the  jin y. 

"A  person  erecting  and  using 
a  hall  for  such  exhibitions  must 

SEATS    AND    FLOORS  305 

The  American  rule  is  extremely  unfair  io  tlie  public 
It  would  l)e  more  in  k('ei)ing  with  justice  if  tlie  j)r()i>ri('t()r 
were  held  strictly  to  account  for  the  giving  way  of  the 
balcony  rail,  regardless  of  whether  he  knew  anything 
about  its  construction,  or  had  received  notice  of  any  de- 

There  are  some  elements  of  responsibihty  resting  upon 
the  theatre  proprietor  which,  because  of  the  peculiar 
arrangement  of  the  building  and  the  methods  of  its  use, 
impose  a  greater  duty  upon  him  than  the  x\jnerican  juris- 
diction exacts. 

It  seems  hard  to  understand  why  a  common  carrier, 
which  is  bound  to  accept  everyone  presenting  himself  as 
a  passenger,  is  charged  with  the  highest  degree  of  care, 
while  tlie  proprietor  of  a  theatre,  more  or  less  free  to  fill 
his  house,  may  expose  gi'eat  numbers  of  the  public  to 
unusual  dangers  and  be  hable  for  ordinaiy  care  only. 

If  this  rule  were  modified,  it  would  do  more  to  insure 
the  safety  of  an  audience  than  is  accomplished  by  all  the 
numerous  statutes  and  ordinances  that  are  i^assed  every 
year.  Weiner  v.  Scherer  '"  comes  nearer  to  expressing 
this  doctrine  than  any  of  the  other  reported  American  cases. 

Section  94. — Seats  and  floors. 

While  the  duty  of  the  theatre  proprietor  has  been  de- 
use  roiisonahle  care  in  the  con-  '*  Wciiur  v.  Schcrcr  (1900), 
striK'tioii,  inainteiiiuicc  and  man-  (it  Misc.  (X.  V.)  82;  117  N.  Y. 
uRcincnt  of  it,  having  regard  to  Sni)|).  lOOS.  Here  the  rail  gave 
tlie  character  of  the  exhibitions  way  Ijccause  of  the  surging  of 
given  and  the  customary  con-  the  crowd,  causing  several  i)eople 
duct  of  spectators  wiio  witness  to  fall  uiv)n  tlie  plaint  it!  who  Wivs 
them.  .  .  ."                                           seated  in  the  orchestra. 



fined  as  ordinary  care,  even  where  the  seats  of  a  graiid 
stand  had  collapsed  it  was  held  nevertheless  that  he  was 
liable  for  defects  in  the  structure  of  the  building  which 
resulted  in  the  giving  way  of  the  flooring. ^-^ 

The  safer  practice  on  the  part  of  the  proprietor  is  to 
make  a  thorough  inspection  of  his  building  every  day, 
paying  particular  attention  to  the  seats.  An  inspection 
of  this  kind  has  been  judicially  defined  as  a  full  com- 
pHance  with  the  proprietor's  duty  to  his  patrons. ^^ 

Section  95. — Tripping    in    darkened    theatre — aisles — 
steps — exits. 
The  case  of  Branch  v.  Klatt  ^^  has  laid  down  the  best 

"  Texas  State  v.  Britton  (1902), 
lis  Fed.  (C.  C.  A.)  713.  Plaiu- 
tilf  wus  injured  by  the  falling  of 
scats  in  a  grand  stand.  Held 
that  the  corporation  operating 
the  State  Fair  and  advertising  the 
side-show  was  liable  in  damages. 

See  also:  Van  Antwerp  v. 
Linton  (1895),  89  Hun  (N.  Y.), 
417;  35  N.  Y.  Supp.  318;  aff'd 
157  N.  Y.  716;  53  N.  E.  1133; 
Uuneke  v.  Went  Brighton  Am.  Co. 
(1903),  80  A.  D.  (N.  Y.)  2G8; 
80  N.  Y.  Supp.  201. 

Brown  v.  So.  Kennebec  (1S59), 
47  Maine,  275.  The  proprietor 
was  held  liable  to  a  patron  for 
injuries  caused  because  of  negli- 
gence in  the  constructif)n  of  a 
building  resulting  in  the  fall  or 
giving  way  of  the  flooring. 

See  also:  Latham  v.  Roach 
(1874),  72  111.  179. 

^^  Glynn  v.  Lyceum  Theatre 
Co.  (1913),  87  Conn.  237;  87  Atl. 
796.  "The  lessee  did  not  insure 
tlie  absolute  safety  of  the  theatre 
seats;  it,  by  its  invitation  to  its 
guests,  assumed  the  duty  toward 
them  of  exercising  reasonable 
care  to  sec  that  the  seats  were  in  a 
reasonably  safe  conditioii  for  its 
guests,  Turgeon  v.  Connecticut 
Co.  (1911),  84  Conn.  538,  541; 
80  Atl.  714.  It  performed  this 
duty  by  having  its  servant  ex- 
amine i\w  .seats  each  day  and 
report  their  (n)ndition,  and  there- 
after repairing  the  defective  ones. " 

"Branch  v.  Klatt  (1911), 
105  Mich.  060;  131  N.  VV.  107; 
after  retrial   173  Mich.  31;   138 

TlUl'l'lNG    I.N    DARKENED    TlIEATItE,    ETC. 


rule  of  all  tho  reported  decisions  with  respect  to  the  liabil- 
ity of  the  tlieatre  i)ro])netor  when  his  theatre  is  darkened 
during  a  performance.  It  holds  that  the  patron,  in  such 
case,  has  the  rif^ht  to  rely  on  the  premises  Ix'ing  in  safe 
ccjndition,  and  that  his  duty  is  lighter  than  that  of  a  pede.s- 
trian.  That  is  an  eminently  sensible  doctrine,  and  should 
be  followed  in  all  the  states.  Unfortunately,  it  is  not. 
The  courts  generally  adhere  to  the  old  rule  of  ordinary  care 
and  contributory   negligence, ^'^  something  which  in  the 

N.  W.  2&3.  Phiiiitiff  wius  hurt 
by  descendint;  tlie  steps  situated 
at  the  exit  of  a  theatre  after  dark. 
The  (juestiou  was  whether  by 
using  this  exit  jjlaiiitiff  was  guilty 
of  contributory  iic>:;lip;oiu'e. 

"One  woukl  have  the  right  to 
presume  that  the  defendant  had 
discharged  his  duty  of  having  the 
premises  in  a  reasonably  safe 
condition,  as  to  hghts  and  con- 
struction; and  the  onhnary  |x*rson 
woukl  naturally  suppose  that  it 
would  1)(^  safe  to  pass  ak)ng  a 
passageway  provided  for  his  exit, 
with  reasonal)le  assurance  of  its 
being  in  safe  condition.  The  very 
fact  of  the  premises  being  main- 
tained in  a  darkened  condition 
niiglit  give  him  addcni  assurance 
of  it,s  being  reasonably  safe.  .  .  . 
The  duty  of  a  ix'rson  in  a  the- 
atre, wliere  he  has  been  invited,  is 
hghtor  than  that  resting  ui)<)n  one 
passing  ak)iig  the  pubhc  streets." 

See  also:  Andre  \.  Merleiui  el  al. 
(1!)10),  96  Atk  (N.  J.)  893.  "It 
is  next  argued  that  the  plaintiff 
was  negligent  as  a  matter  of  law 
in  attempting  to  leave  the  theatre 
before  the  show  wii.-<  Hnlsheil.  Not 
so.  The  defendants  commonly 
exhibited  the  same  pictures  over 
and  over  again  on  the  same  even- 
ing, and  it  was  quite  usual  for 
patrons  to  depart  at  any  time." 

"  llolknback  v.  Clcmmcr  (1912), 
m  \  565;  119  Pac.  1114. 
Plaint ilT  had  attended  a  moving- 
pictun;  show  and  on  leaving  the 
theatre  was  directed  by  the  usher 
to  take  a  particular  exit.  There 
was  a  step  down  of  seven  inches 
at  this  exit.  \ot  noticing  this 
step  she  w;is  pn'cipitated  to  the 
ground  and  injured.  Held  that 
defendant  was  not  liable;  that 
jilaintiff  should  have  usetl  her 
sense*  of  sight  and  looke<l  wliere 
she  was  stepping. 



light  of  the  facts  that  usually  obtain,  seems  unnecessarily 
harsh  and  unjust. 

It  has  been  held  that  the  theatre  proprietor  is  under  a 

New  Theatre  v.  Hartlove  (1914), 
123  Md.  78;  90  Atl.  990.  The 
appellee  was  injured  by  reason  of 
a  fall  while  seeking  a  seat  in  a 
darkened  theatre. 

Ordinary  care  and  diligence 
was  held  to  be  the  measure  of 
defendant's  duty,  and  a  verdict 
in  favor  of  plaintiff  was  upheld 
in  view  of  all  the  evidence. 

Pattison  v.  Livingston  Am.  Co. 
(1913),  156  A.  D.  (N.  Y.)  368; 
141  N.  Y.  Supp.  588.  Plaintiff 
entered  the  balcony  while  the 
theatre  was  dark.  Her  seats 
were  in  the  fifth  row  from  the 
front.  Without  waiting  for  any 
assistance,  she  groped  her  way 
along,  and  was  injured. 

Held,  that  she  was  guilty  of 
contributory  negligence  as  a  mat- 
ter of  law. 

Bulclwr  V.  Ifydc  (1897),  152 
N.  Y.  142;  46  N.  E.  305.  It  was 
held  error  for  the  trial  court 
to  refuse  to  charge  that  if  jilaintiff 
fell  from  the  fourth  or  fifth  stoj) 
tli(!  verdict  must  be  for  the  de- 
fondants  where  there  was  no 
proof  of  any  defect  in  the  stair- 
way of  a  theatre  except  in  the 
condition  of  a  strip  of  rubber  on 
the  sixth  step. 

Andre  v.  Mertens  et  al.  (1916), 
96  Atl.  (N.  J.)  893.  Plaintiff 
in  leaving  defendant's  motion 
picture  theatre,  descended  a  stair- 
way leading  from  the  balcony  to 
the  entrance  floor.  Because  of 
the  dark  condition  of  the  stair- 
way, she  lost  her  footing  in  a 
turn  of  the  stairs  and  was  pre- 
cipitated to  the  platform  below. 
In  affirming  a  judgment  in  plain- 
tiff's favor  the  court  said: 

"The  proprietor  of  a  theatre 
conducted  for  reward  or  profit, 
to  which  the  general  public  are 
invited  to  attend  performances 
must  use  ordinarj''  care  to  make 
the  premises  as  reasonably  safe 
as  is  consistent  with  the  practical 
operation  of  the  theatre,  and  if  ho 
fails  in  this  duty,  he  may  be 
held  liable  for  personal  injuries 
occasioned  thereby;  and  this  rule 
applies  to  the  proprietor  of  a 
moving   picture   show." 

See  also:  Owens  v.  Associated 
Hraltics  (1911),  SI  N.  J.  Law, 
FySC);  SO  Atl.  ;V25;  Branch  v.  Klalt 
(1911),  165  Mich.  666;  131  N.  W. 
107;  same  case  after  retrial  173 
Mich.  31;  138  N.  W.  263;  Valen- 
lim-  Co.  v.  Shmn  (1912),  53  Ind. 
App.  69;  101  N.  E.  102. 



duty  to  mako  propor  inspootions  of  his  proinisos,  and  it  is 
for  tho  jury  to  say  wlicthcr  such  insj)ec'tioiis  were  made  a 
sufficient  length  of  time  before  to  have  enabled  him  to 
repair  tlic  premises/^'-' 

The  violation  of  a  statute  or  ordinance  by  the  pro- 
prietor renders  him  prima  facie  liable;  and  a  failure  to 
build  inchnes  as  required  was  held  to  be  the  proximate 
cause  of  the  injury.^" 

and  fell.  Tiic  light  provided  was 
not  suffieieiit  for  her  to  distiiiKulsh 
theunovenstcps,  and  she  was  (juite 
unfainihar  with  tlieir  coiichtion. 
Held,  that  there  was  no  such  thing 
here  as  assumption  of  risk. 

"One  who  conducts  a  theatre 
for  reward  or  j)rofit,  to  which  the 
general  public  arc  invited  to 
attend  performances,  must  use 
ordinary  and  reasonable  care  to 
make  the  premises  as  reasonablj' 
safe  as  is  consistent  with  the 
practical  operation  of  the  same." 

Nephlcr  v.  Woodward  (1906), 
200  Mo.  175);  OS  S.  W.  4.S.S.  Plain- 
tilT,  a  patron  of  defendants' 
theatre  while  pa.'vsing  down  one 
of  the  aisles  to  her  .<eat  fell,  her 
foot  having  caught  in  a  hole  in  the 
cariK't.  Held,  that  jurj'  could 
find  that  defendants  faiknl  to 
the  j)ropcr  care  retiuircd  of  them 
to  protect  their  patrons,  and 
judgment  entered  on  verdict  of 
jur>'  was  aflimied. 

*'>Ewing  V.   rha<^c    (1011),  ;}7 

'•>  Dalton  V.  Hooper  (1014),  108 
S.  \V.  (Tex.)  84.  I*laintifT, 
wliile  descending  a  stairway  in  a 
tlieatre,  caught  her  foot  on  a 
projecting  metal  strip,  and  sus- 
tained injuries.  Held,  that  while 
defendants  were  not  insurers, 
yet  they  owed  the  dutj'  of  exer- 
cising reasonaljle  care. 

"  It  is  their  duty  to  make  proper 
inspections  to  .see  that  the  place 
is  in  proper  condition  to  avoid 
injury.  In  this  case  there  was 
proof  to  show  inspection,  and 
whether  the  projecting  metal 
strip  that  caused  apix-llee  to  fall 
was  known  to  be  in  that  condition, 
or  should  have  been  known  to 
appellants  by  rea.sonablc  care, 
a  sufficient  length  of  time  before 
tlie  accident  to  have  been  re- 
paired by  apiK^llants,  was  a  ques- 
tion for  the  jury's  detenninatii)n." 

Va'entine  Co.  v.  Sloan,  53  Ind. 
App.  00,  101  N.  E.  102.  Plain- 
tilT,  while  attempting  to  descend 
an  aisle  in   the  theatre,  tripjx^d 



In  Micheltree  v.  Stair  "^^  the  proprietor  was  sought  to 
be  held  hable  by  reason  of  an  injury  suffered  by  an  actress 
who  used  an  iron  stairway  to  reach  her  dressing-room. 
It  was  held  that  she  assumed  the  risk.  We  cannot  rec- 
oncile this  decision  with  the  cases  in  the  same  state  which 
hold  that  a  tenant  who  has  no  method  of  egress  from  or  in- 
gress to  his  apartment  other  than  the  stairway  on  which 
he  is  injured,  is  not,  by  reason  of  his  using  such  stairway, 
guilty  of  contributory  negligence.  We  do  not  believe 
that  that  decision  will  be  followed. 

On  the  other  hand,  a  patron  of  a  theatre  has  no  right 
to  leave  by  a  rear  exit  which  is  not  intended  for  general 
use,  and  where  he  does  so,  and  is  hurt,  he  cannot  recover."*- 

App.  Cas.  (D.  C.)  53.  The  de- 
fendant violated  a  statute  in 
failing  to  build  proper  inclines 
leading  to  exits,  in  his  theatre. 
The  court  held  that  one  who 
failed  to  comply  with  a  statute 
was  guilty  of  negligence  as  a 
matter  of  law  where  the  person 
injured  was  free  from  contribu- 
tory negligence  and  the  violation 
of  the  statute  was  the  proximate 
cause  of  the  injurj'. 

*  •  M  icIieUree  v .  Stair  ( 1 909) , 
1.3.5  A.  1).  (N.  Y.)  210;  120  N.  Y. 
Supp.  fAO.  PluintifT,  an  actress, 
slipped,  while  using  stairway 
loading  to  her  dressing  room, 
because  of  the  slippery  condition 
of  the  iron  trends  on  the  stairs. 
Held  that  as  she  had  used  the 
stairway  a  number  of  times  be- 

fore, she  must  have  known  the 
condition  of  the  stairway  and 
assumed  the  risk.  Held  further 
that  the  appellants  not  being 
plaintiff's  employers,  were  only 
bound  to  use  reasonable  care  in 
keeping  the  building,  including 
the  stairway  in  repair,  but  under 
no  obligation  to  furnish  her  with 
a  reasonably  safe  place  to  work. 

••2  Hendershott  v.  Modern  Wood- 
men (1911),  66  Wash.  155;  119 
Pac.  2.  Plaintiff  while  leaving  a 
hall  by  the  back  stairway  was 
injured.  Held,  no  liability,  as 
there  was  no  invitation  to  enter 
or  leave  by  that  way. 

Johnson  V.  Wilcox  (1890),  1.35 
Pa.  St.  217;  19  All.  939.  Plaintiff 
had  attended  :i  dance-hall.  In- 
stead of  leaving  by  the  lighted 



Nor  is  the  owner  liable  because  plaintiff  had  tripped  over 
a  mat  in  the  foyer  near  the  ticket  ofhce." 

Section  96. — Articles  dropping. 

Wlien  a  j)atron  is  injured  by  the  fall  of  a  part  of  the 
ceiling  or  chandelier,  the  rule  of  res  ij)sa  locjuitur  applies, 
and  the  burden  is  on  the  proprietor  to  show  that  he  was 
free  from  negligence.  In  such  a  case  proof  that  the 
premises  were  regularly  and  carefully  inspected  will  not 
relieve  him  from  liability.^'  To  hold  otherwise  would  be 
to  place  a  premium  upon  carelessness  on  the  part  of 
theatre  proprietors. 

It  has  been  held  in  Flanagan  v.  Goldberg  ^^  that  a  charge 

entrance  he  stepped  out  upon  a 
tiark  platform.  Held  that  de- 
fendant was  not  liable  for  the 
injury  resulting. 

"'  Ilulmes  V.  United  Theatres 
(191.5),  152  N.  W.  (Mich.)  987. 

See  generally:  Norton  v.  lludner 
(1913),  213  Mass.  257;  100  N.  E. 
.546;  De  Velin  v.  Simn^son  (1909), 
72  Atl.  (R.  I.)  388;  Dunjer  v. 
//(7/.S  Bros.  (1903),  79  A.  D.  (N. 
Y.)  45;  79  N.  Y.  Supp.  7S.5; 
Reeves  v.  Fourteenth  St.  Theatre 
(1906),  110  A.  D.  (X.  Y.)  73.5; 
96  X.  Y.  Supp.  448;  DiuUey  v. 
Afjraham  (1907),  122  A.  D.  (X.  Y.) 
480;  107  X.  Y.  Supp.  97;  Meyer  v. 
Grand  Rapids  Chair  Co.  (1914), 
180  Mich.  604,  147  X.  W.  488. 

**  Goldstein     v.     Levy     (1911), 

74  Misc.  (X.  Y.)  463;  132  X.  Y. 
Supp.  373. 

But  see:  Sheets  v.  Suiibry  (1912), 
237  Pa.  St.  153;  85  Atl.  92.  Plain- 
tiff, while  attending  an  amu.^^e- 
iiiciit  park,  stopjx'd  under  a  tree. 
A  linilj  or  branch  fell  upon  him, 
injuring  him,  and  the  testimony 
showed  that  it  apix-ared  to  be  de- 
cayed, although  there  was  some 
dispute  as  to  that.  It  appeared 
that  two  days  prior  thereto  an 
insjjection  of  the  park  had  been 
made.  Held  that  defendant  was 
not  liable  and  judguiciit  in  plain- 
tiff's favor  reversed. 

*' Flanagan  v.  Goldberg  (1910), 
137  A.  D.  (X.  Y.)  92;  122  X.  Y. 
Supp.  205.  Plaintiff  was  in- 
jured  by   a    board  falling  in  a 



to  this  effect  was  error,  but  the  special  facts  in  that  case 
must  be  considered,  as  there  was  indication  that  the 
board  had  been  placed  by  strangers.  The  better  rule 
would  be  to  give  the  patron  the  benefit  of  every  hberal 
construction,  for  he  enters  at  the  invitation  of  the  owner, 
and  relies  upon  the  latter' s  prudence  and  carefulness  in 
the  maintenance  of  the  premises/^ 

Special  circumstances  might  arise  when  the  proprietor 
would  not  be  held  liable,  as  in  case  of  a  sudden  panic  ''^ 
on  where  the  article  dropped  had  not  been  fastened  to 
the  premises  and  might  have  been  so  dropped  by  a 
stranger.  ■^^ 

motion  picture  theatre.  The 
court  held  that  it  was  error  to 
charge  that  the  burden  was  on 
defendant  to  show  freedom  from 
neghgence  rather  than  on  plain- 
tiff to  show  neghgence. 

*^  Currier  v.  Henderson  (1895), 
85  Hun  (N.  Y.),  300;  32  N.  Y. 
Supp.  953.  Defendant  was  held 
liable  for  injuries  received  by 
plaintiff  by  the  fall  of  a  batten 
from  the  flies  in  defendant's 

Schnizer  v.  Phillips  (1905), 
lOS  A.  D.  (N.  Y.)  17;  95  N.  Y. 
Su[)p.  478;  Fox  v.  Buffalo  Park 
(1897),  21  A.  I).  (X.  Y.)  321; 
47  N.  Y.  Supp.  788;  aff'd  136 
N.  Y.  559;  57  N.  K.  1109;  Abrom- 
owitzv.  Tcnzcr  (1911),  144  A.  D. 
(X.  Y.)  170;  128  X.  Y.  Supp.  951; 
Lmk  V.  Peck  (1909),  132  A.  1). 

(N.  Y.)  426;  116  N.  Y.  Supp. 
1051;  aff'd  199  N.  Y.  546;  93 
N.  E.  377. 

^T  King  v.  Ringling  (1910),  145 
Mo.  App.  285;  130  S.  W.  482. 
Plaintiff  was  injured  by  falling 
of  a  board  at  defendant's  circus, 
during  a  panic  caused  by  a  wind- 
storm. Held  defendant  not  liable 
as  no  evidence  was  brought  out 
showing  that  defendant  was  guilty 
of  a  breach  of  any  duty  owing 
to  plaintiff. 

«  Williaym  v.  Mineral  C.  P.  A. 
(1905),  128  Iowa,  32;  102  N.  W. 
783;  1  L.  H.  A.  (X.  S.)  427. 
While  seated  below  a  grand  stand 
in  a  park  where  races  were  being 
held,  a  bottle  was  dropped  upon 
plaintiff.  Held  that  as  reasonaljle 
care  was  the  measure  of  duty, 
the  charge  was  correct  and  the 

^VIM)    ANIMAI>; 


Section  97.     Wild  animals. 

UiidcT  one  line  of  cases  the  rule  of  liability  on  the  jjurt 
of  an  owner  of  wild  animals  was  a  veiy  stringent  one,  so 
that  where  the  animal  escaped  and  injured  another,  the 
owner  at  once  and  in  any  event  became  lia))le.'^  Tlie 
owner  was  legally  i)resumed  negligent  "'"  and  was  charged 
with  knowledge  of  the  propensities  of  such  animals  to  do 
injury.-''     He  was  bound  to  ''absolutely  prevent"   the 

jury's  vordi<'t  for  tlie  dofendaiit 
would  not  l)(!  disturbed.  There 
was  no  evidence  to  show  how  the 
bottle  had  been  dropped  or  by 

Picscltd  V.  Miner  (1900),  30 
Misc.  (X.  Y.)  301 ;  63  N.  Y.  Supp. 
508.  "PlaintifT  moves  to  set 
aside  a  dismissal.  He  showed 
tliat  while  in  the  orchestra  of 
defendant's  theatre,  he  was  in- 
jured througli  tlie  fall  of  an  iron 
hook  from  above  the  stage.  The 
defendant  throuRh  a  witness  called 
by  the  jilaintiff,  sliowed  that  the 
hook  fell  while  in  use  by  the 
stage  carpenter;  there  was  no 
evidence  of  tlie  character  of  any 
defect  which  existed  prior  to  the 
accident,  or  that  the  tool  was 
UMsuited  to  tlie  work.  .  .  .  The 
dismis.sal  was  therefore  proper." 

«  lllale,  P.  C,  chap.33,  p.  430. 
The  doctrine  was  laid  clown  by 
Hale  that  when  the  animal  es- 
capes,   the    owner    is    at    once 

liable  irrespective  of  the  degree 
of  care  exercised  by  him  in  keejv 
ing  the  animal  confined. 

See:  Besozzi  v.  Harris  (Eng.) 
(1858),  1  Fost.  &  F.  92;  Wyalt  v. 
RosherviUe  Gardens  (Eng.)  (18SG), 
2  Times  L.  H.  282;  Manger  Bros. 
v.  Shipman  (1890),  30  Xeb.  3.'y2; 
46  N.  W.  527;  Shaw  v.  McCreary 
(Can.),  19  Ont.  Rep.  39. 

'-"Rogers  v.  Rogers  (1887),  4 
N.  Y.  St.  Rep.  373.  Xcgligence 
of  the  owner  is  the  legal  presumi>- 
tion.  While  a  man  might  by  a 
wanton  act,  provoke  an  attack 
"every  failure  to  use  care  is  not 
negligence  nor  does  the  rule  of 
contributor}'  negligence  in  the  in  which  that  term  is  ordi- 
narily applied,  govern  in  such" 

''^Spring  v.  Edgar  (1878),  90 
U.  S.  645.  "Animals  ferae  natu- 
rae as  a  are  known  to  l>c 
miscliiin'ous;  :ind  the  rule  is  well 
settlinl  that  whoever  underUikea 



injury  ^-  and  the  fact  that  plaintiff  was  a  trespasser  upon 
the  premises  whereon  the  animals  were  kept  did  not 
defeat  a  recovery.  ^^ 

to  keep  such  an  animal  in  places 
of  public  resort  is  or  may  be 
liable  for  the  injuries  inflicted 
by  it  on  a  party  who  is  not 
guilty  of  negligence  and  is  other- 
wise without  fault  ...  in  ac- 
tions for  injuries  by  such  beasts 
it  is  not  necessary  to  allege  that 
the  o\vner  knew  them  to  be  mis- 
chievous, for  he  is  presumed  to 
have  such  knowledge,  from  which 
it  follows  that  he  is  guilty  of 
negligence  in  permitting  the  same 
to  be  at  large." 

See  also:  Woodbridge  v.  Marks 
(1896),  5  A.  D.  (N.  Y.)  604; 
40  N.  Y.  Supp.  728;  Brooks  v. 
Taylor  (1887),  65  Mich.  208;  31 
N.  W.  8.37;  Fopplewell  v.  Pierce 
(Eng.)  (18.52),  10  Cush.  509; 
Snoiv  V.  McCracken  (1895),  107 
Mich.  49;  64  N.  W.  866;  Partlow 
V.  Ilaggerty  (1870),  35  Ind.  178; 
Williams  v.  Moray  (1881),  74 
Ind.  25. 

'■^Gooding  v.  Chutes  (1909), 
102  Pac.  (Cal.)  819;  23  L.  R.  A. 
(N.  S.)  1071.  Dofoiidant  was 
keeping  animals  for  exhibition 
at  a  place  called  "The  Chutes." 
Plaintiff  was  employed   to  look 

after  them,  and  in  particular 
a  camel  of  vicious  propensities. 

"  It  is  the  duty  of  one  who  owns 
or  keeps  domestic  animals  known 
to  be  vicious  to  guard  them  in 
such  a  manner  as  ^yill  absolutely 
prevent  the  occurrence  of  an 
injury  to  others  through  such 
vicious  acts  of  the  animals  as  they 
are  naturally  inclined  to  com- 
mit. .  .  .  This  language  is  used 
in  the  authority  cited  with  re- 
spect to  the  duty  of  an  owner  of 
wild  animals,  which  are  pre- 
sumed to  be  ferocious." 

Hays  V.  Miller  (1907),  43  So. 
(Ala.)  818.  The  owner  of  a  wolf 
was  hold  liable  for  injuries  in- 
flicted by  the  animal. 

"On  the  other  hand  the  owner 
of  wild  animals  ferae  naturae  is  as 
a  general  rule  liable  for  in- 
juries done  by  them.  It  is  not 
necessary  to  prove  that  the  owner 
had  knowledge  of  the  vicious 
nature  of  a  wild  animal  causing 
injury,  as  he  is  conclusively 
presumed  to  have  such  knowledge. 
Neither  is  it  necessary  to  show 
that  the  owner  was  negligent  in 
permitting  the  animal  to  be  at 

"Marble  v.  Ross  (1878),  124  Mass.  44. 



"It  is  the  duty  of  thoso  who  koop  thorn  (wild  boasts) 
to  do  it  in  such  a  niannor  as  will  absolutely  i)revont  the 
occurrence  of  an  injury  to  others  through  such  vicious 
acts  of  the  aiiinials  as  they  are  naturally  inclined  to  com- 
mit, and  such  liability  exists  without  notice  of  the  jjre- 
vious  misconduct  of  such  animals.  In  other  words,  such 
notice  is  conclusively  presumed  from  the  nature  of  the 
animal."  •'* 

But  wild  animals  have  become  a  very  necessarj'  feature 
of  the  motion  picture  business  as  well  as  of  theatrical 
exhibitions  and  the  rule  of  absolute  liability  has  been 
recognized  as  harsh  and  unjustly  severe.  It  has  for  that 
reason  been  modified  to  the  extent  that  .some  negligence 
must  be  shown  on  the  i)art  of  the  owner  before  he  may 
be  held  liable. •'' 

large  for  lie  is  bound  to  keep  it 
secure  at  his  peril." 

See:  Par  fin  ns  v.  Manser  (1903), 
119  Iowa,  88:93  X.  W.  86. 

Aiulreir  v.  Kilgnur  (Can.),  19 
Manitoba,  545;  13  West.  L.  Rop. 
608.  Held  the  owner  absolutely 
liable  for  injuries  caused  by  his 
I^et  racoon. 

VreAenburg  v.  Behan  (1881), 
33  La.  Ann.  627.  Where  plain- 
tiff's intestate  wa.s  set  upon  by 
a  l)oar  and  mortally  attacked, 
his  estate  could  recover  of  the 
defendants,  members  of  a  club, 
which  had  kept  the  bear  upon  the 
adjoining  premises. 

See  also:  Sperknidii  v.  Krciij 
(1899),  79  Mo.  App.  370. 

Ildrrif!  V.  Carstens  Packing  Co. 
(1906),  86  Pac.  (Wa-sh.)  1125. 
Defendant,  the  owner  of  a  vicious 
steer,  held  liable  for  one  injurwl 
l)y  the  animal. 

See  also:  Midler  v.  McKeni^on 
(1878),  73  N.  Y.  195;  Hammond 
v.  Melton  (1891),  42  III.  App.  186; 
Ahlstran^l  v.  Bishop  (1899).  88 
III.  App.  424. 

''*  Parker  v.  Cuahman  (1912), 
195  Fed.  (C.  C.  A.)  715.  Plain- 
tiff attended  a  wild-animal  show, 
and  a  lion  reache<l  through  the 
bars  and  injuretl  her. 
^  >'^Molloy  V.  Starin  (1«K)8),  191 
N.  Y.  21;  8:1  N.  E.  588.  The 
owner  of  a  boat  wa«J  tran^jiorting 
several  trained  bears.     Plaintiff, 



"Hence  the  gist  of  such  an  action  as  this  is  not  the 
keeping  of  the  dog  with  knowledge  of  his  dangerous  na- 
ture, but  rather  the  neghgent  failure  to  properly  restrain 
the  animal,  and  to  keep  liim  so  safely  that  he  may  not 
injure  anyone  who  is  lawfully  at  the  place."  ^^ 

Where  the  owner  is  free  from  all  negligence  and  the 
animal  escapes,  the  owner  is  not  liable. ^^    Nor  is  the  owner 

a  boy  of  nine  years,  came  upon 
the  cages  and  was  injured.  Held 
that  the  defendant  was  not 
brought  within  the  rule  making 
it  absolutely  liable  for  beasts 
ferae  naturae,  unless  negligence 
on  his  part  could  be  shown,  and 
that  as  no  negligence  was  here 
shown,  a  verdict  in  favor  of 
plaintiff  was  reversed. 

^  Hayes  v.  Smith  (1900),  62 
Ohio  St.  161;56N.  E.  879. 

See  also:  Thomas  v.  Bayson 
(1901),  21  Ohio  C.  C.  778;  Fake 
V.  Addicks  (1890),  45  Minn.  37; 
47  N.  W.  450;  Melsheimer  v. 
SnlUvan  (1891),  1  Colo.  App. 
22;  27  Pac.  17;  Meibiis  v.  Dodge 
(1875),  38  Wis.  300;  Worthen  v. 
Love  (1888),  GO  Vt.  285;  14  Atl. 
461;  Graham  v.  Payne  (1889), 
122Ind.  403;24N.  E.  216. 

'•''  (,'onnor  v.  The  Princess 
Theatre  (Can.),  10  I).  L.  R.  143; 
4  O.  VV.  N.  502;  27  Out.  L.  Rep. 
466;  49  C.  L.  .1.  US.  Phiintiff 
w;is  injured  l)y  a  trained  nK)nkoy 
wliich  performed  in  the  theatre 

of  defendants.  Held  that  de- 
fendants were  not  liable  as  they 
had  not  been  guilty  of  any  neg- 
ligence, the  monkey  having  been 
insecurely  fastened  by  a  stranger. 

See  also:  Du  Tremble  v.  Poulin 
(Can.),  42  Que,  S.  C.  121. 

De  Gray  v.  Murray  (1903), 
69  N.  J.  L.  458;  55  Atl.  237. 
Defendant  was  accustomed  to 
keeping  a  vicious  dog  locked  up 
for  the  night.  The  dog  managed 
to  chew  away  the  woodwork 
around  the  lock  of  his  house,  and 
escaped,  injuring  plaintiff  early 
the  following  morning.  Defend- 
ant held  not  liable. 

Scrib7ier  v.  Kelly  (1862),  38 
Barb.  (N.  Y.)  14.  Defendant 
owned  an  elephant.  Plaintiff's 
horse  became  frightened  thereat 
and  caused  the  injury.  Hrld  (hat 
while  the  defendant's  nogligciu-e 
was  presumed,  there  was  no  proof 
here  that  he  was  anything  but 
careful,  and  the  complaint  was 

WILD    AM.M.\I>> 


liahlo  when  the  i)laintilT  has  liimself  been  guilty  <;f  eun- 
tributory  negligence  or  has  provoked  the  animal.''*  And 
the  owner  has  been  held  harmless  where  the  plaintiff  was 
employed  to  look  after  the  animal,  for  in  that  ease  the 
latter  is  presumed  to  have  accepted  the  risk  incidental 
to  his  employment. ^^ 

There  seems  to  have  been  a  reversion  to  the  old  doc- 
trine in  a  recent  New  York  decision  where  a  proprietor 
was  held  hable  although  no  actual  negligence  on  his  part 
was  shown. 

It  is  rather  surprising  to  see  the  old  doctrine  of  absolute 
liabiUty  invoked  and  enforced  at  the  present  time,  but 
iSlamp  v.  Sixty-eighth  Street  Amusement  Company  ^^ 
seems  to  be  based  wholly  on  that  theor>'.  There  a  lion 
had  cscai)ed  during  a  performance,  and  a  panic  ensued, 
causing  the  plaintiff's  injuries.  While  the  learned  court 
rightly  held  that  the  panic  and  injury  were  a  direct  re- 
sult of  the  animal's  escape,  it  also  held  that  the  pro- 

<^Ervin  v.  Woodruff  (1907), 
119  A.  D.  (N.  Y.)  603;  103  X.  V. 
Supp.  lO.'jl.  One  who  places  hiin- 
solf  in  danpcr  of  attack  by  a  l)oar 
is  guilty  of  contributory  negli- 

See:  Marqucl  v.  LaDiikc  (1893), 
96  Mich.  596;  55  N.  W.  lOOG; 
Jackson  v.  Baker  (1904),  21  Ai)i). 
D.  C.  100. 

"  Barman  v.  City  of  Miluunktc 
(1896),  93  Wis.  522;  07  X.  W. 
924;  33  L.  R.  \.  <1.VJ.  IMaintilT 
was  einployetl  in  a  park  where 
deer  and  elk  were  kept  and  while 

in  an  enclosure  with  the  anin)als, 
w;us  attacked  by  them  and  in- 
jured. He  was  held  to  have  ac- 
cepti^d  the  ordinary  risks  inciilent 
t«  the  business,  and  defendant 
was  not  liable. 

See:  Little  v.  City  of  Madison 
(1877),  42  Wis.  G43;  S.  C,  49 
Wis.  605;  6  X.  W.  249;  May  v. 
Burddt  (Eng.)  (1846), 9 Q.  B.  101; 
9  .\dol.  &  E.  (X.  8.)  101 ;  Filburn 
V.  Peoples  P.  &  A.  Co.  (Eng.) 
(1890),  25  Q.  B.  Div.  258. 

^ Stamp  V.  nsth  St.  Am.  Co. 
(1917),  159  X.  Y.  Supp.  683. 



prietor  of  the  theatre  was  liable  irrespective  of  whether 
he  was  neghgent  or  not. 

To  this  doctrine  we  cannot  subscribe.     We  do  not 
think  that  the  case  will  stand. 

Section  98. — Crowds. 

It  has  been  held  neghgence  on  the  part  of  the  theatre 
proprietor  to  so  overcrowd  his  balcony  as  to  cause  the 
giving  way  of  the  rail."  Narrow  passageways,  resulting 
in  a  jamming  of  the  crowd,  and  injury  to  the  plaintiff 
will  also  make  him  Hable,  as  it  has  been  held  to  be  the 
proximate  cause  of  the  injury.^-  And  a  failure  to  guard 
the  space  under  a  platform  which  collapsed  and  killed  a 
boy  who  had  strayed  underneath  was  sufficient  to  charge 
the  defendant  with  liabiUty.^^ 

^^Weiner  v.  Scherer  (1909),  64 
Misc.  (N.  Y.)  82;  117  N.  Y.  Supp. 
1008.  Plaintiff  while  seated  in 
the  orchestra  was  injured  by  the 
giving  way  of  a  rail  on  the  bal- 
cony, causing  several  people  to 
fall   upon   him. 

"The  defendant  must  be  as- 
sumed to  lui\e  known  the  capac- 
ity of  the  balcony,  and  he  had  no 
right  to  permit  it  to  become  so 
overcrowded  as  to  cause  undue 
pressure  upon  the  rail.  The 
pressing  forward  of  the  people 
U)  view  the  performance  was  also 
to  be  expected,  and  that  this 
would  naturally  be  done,  by  the 
standees   should   have   been   an- 

ticipated; and  the  admission  of  a 
much  greater  number  of  people 
than  the  balcony  in  ordinary  use 
was  intended  to  contain  .  .  . 
made  it  a  question  for  submis- 
sion to  the  jury." 

^^  Bole  V.  Pittsburgh  A.  C. 
(1913),  205  Fed.  (C.  C.  A.)  468. 
Plaintiff  was  injured  while  at- 
tending a  baseball  game.  Held 
that  the  proximate  cause  of  the 
accident  was  the  act  of  defendant 
in  maintaining  a  narrow  passage- 
way, and  judgment  in  defend- 
ant's favor  was  reversed. 

<'' Murrell  v.  Swilh  (1910), 
152  Mo.  App.  95;  133  S.  W.  76. 
Plaintiff's    intestate,    a    boy    of 

HURT    m     lEIiFORMKU 


In  one  case  fire  hroko  out  in  tlie  defendant's  circus, 
and  plaintiff  was  injuretl.  Defendant's  liability  was 
rested  upon  his  failure  to  supply  fire  extinf^uishers/' 

From  the  fore^oinp;  cases  the  rule  might  be  adduced 
that  the  i)ro|)rietor  of  a  theatre  or  other  place  of  amuse- 
ment is  bound  to  anticipate  the  gathering  of  great  crowds, 
and  he  is  in  duty  bound  to  make  some  suitable  provision 
for  their  safe  entry  and  exit,  their  disposal,  and  for  the 
common  emergencies  that  may  arise,  such  as  fire  and 

Section  99. — Hurt  by  performer. 

The  proprietor  of  a  theatre  is  mider  a  duty  to  exercise 
reasonable  care  in  safeguarding  the  audience  from  injury 

elKJit  years,  met  his  detitli  under 
:i  phitform  erected  by  and  under 
the  charge  of  the  defendant's 
managers  in  the  midst  of  fair 
grounds.  The  surging  of  tlic 
crowd  caused  the  jjlatforni  to 
collapse.  Held  that  harriers 
should  have  been  placed,  as  cliil- 
dren  might  iiave  been  expected 
to  go  into  this  space.  That  rea- 
sonabU*  diligence  and  caution 
was  the  measure  of  defendant's 
duty.  (Sec:  Van  Clccf  w  Chicago, 
23  L.  R.  A.  (N.  S.)  642.) 

^*Gnswol(l  V.  Ringling  (191.')), 
10.-)  A.  D.  (X.  Y.)  737;  1.^)0  X.  Y. 
Supp.  1022.  It  was  held  that  the 
question  of  negligence  was  for 
the  jurj-  in  a  case  where  a  sjkjc- 

talor  of  a  circus  was  injured  in 
endeavoring  to  get  out  ui)on  the 
breaking  out  of  fire  in  the  tent 
and  the  defendant  failed  to  have 
chemical  e.\tingui.shers  therein. 

"  Edwards  v.  N.  Y.  A  11.  h'.  A'. 
(ISS.")),  !»N  X.  Y.  24.').  Defend- 
ant had  lea.sed  Clilmore's  (lardens 
to  one  Kelley,  who  wjus  to  make 
all  alterations.  Kelley  permitte<l 
a  large  crowd  to  ent<T  upon  a 
gallery,  and  as  a  result  of  the  over- 
crowded condition  and  the  stami>- 
ing  of  the  people,  the  gallery  fell, 
injuring  plaintiff. 

By  a  tlivi(le<l  court,  four  to 
tlmM%  the  defendant  was  ln-ld  not 
liable.  Ch.  .1.  Ruger  writing  a 
long  dissenting  opinion  in  which 



likely  to  be  suffered  at  the  hands  of  performers.^^  It  has 
been  said  in  England  that  the  proprietor  impUedly  war- 
rants his  play  to  be  safe.®''  But  this  theory  would  seem 
to  break  dovm  where  the  entertainment  given  is  known 

he  maintained  that  inasmuch  as 
the  defendant  knew  the  purposes 
for  which  the  hall  was  let  and  the 
inadequacj^  of  the  gallery  to  ac- 
commodate a  large  crowd,  he  was 
guilty  of  negUgence,  and  should 
have  been  held  liable. 

The  dissenting  opinion  seems 
to  have  carried  greater  weight 
than  the  prevailing  opinion  in  the 
later  case  of  Atchison  Ely  v. 
Thomas,  104  A.  D.  (N.  Y.)  368; 
93  N.  Y.  Supp.  693. 

^  Brown  v.  Batchellor  (1908), 
69  Atl.  (R.  I.)  295.  It  was  held 
that  a  bill  of  complaint  alleging 
that  defendants  were  negligent  in 
faihng  to  provide  suitable  pro- 
tection upon  the  stage  to  prevent 
a  performer  on  a  bicycle  from 
riding  ofif  the  stage  stated  a  good 
cause  of  action. 

Cole  V.  Rome  Sav.  Bank  (1916), 
96  Misc.  (N.  Y.)  188;  161  N.  Y. 
Supp.  15.  Defendant  Edwards 
liad  engaged  a  trapeze  act.  Dur- 
ing the  progress  of  the  perform- 
ance the  mechanism  broke  and 
an  iron  hook  flew  out  and  struck 
])Iaintifif  in  the  audience. 

"I  think  upon  the  evidence  ia 
the  case  a  fair  question  of  fact 
was  presented  as  to  whether  the 
Campbell  Brothers  used  due  care 
in  the  erection  and  securing  of  the 
casting  net  and  as  they  were 
hired  to  give  the  exhibition  from 
which  the  proprietor  derived 
profit  it  was  the  business  of  the 
proprietor  and  not  that  of  Camp- 
bell Brothers.  The  relation  of 
respondeat  superior  therefore  ex- 
isted, and  the  proprietor  was 
chargeable  with  their  negli- 

6^  CO.-C  V.  Coulson  (Eng.)  (1916), 
85  L.  J.  K.  B.  1081;  2  Ch.  177; 
114  L.  T.  599;  60  S.  J.  402;  32 
T.  L.  R.  406;  rev.  31  T.  L.  R.  390. 
Plaintiff  was  in  the  audience  of  a 
theatre.  An  actor  on  the  stage, 
discharging  a  pistol,  injured  him. 
A  verdict  in  plaintiff's  favor  was 
reversed,  the  Court  of  Appeal 
holding  that  while  defendant  im- 
pliedly covenanted  that  he  would 
use  reasonable  care  and  dili- 
gence, he  did  not  warrant  that 
the  members  of  his  company 
would  do  likewise. 



to  be  attended  with  some  danger,  although  it  might  be 
said  tliat  the  warranty  would  extend  to  the  place  where 
the  performance  is  given.  At  any  rate  a  c^uestion  of 
fact  would  be  presented  as  to  whether  the  proprietor  had 
taken  all  reasonable  preeauti(jns  to  prevent  injur}^  to  the 

It  has  been  held  that  one  attending  a  baseball  game 
does  so  with  full  knowledge  of  the  risk  he  takes  in  being 

".Ir/toW  V.  State  (1914),  163 
A.  1).  (N.  Y.)  25:j;  148  N.  Y. 
Supp.  47'.>.  Where  the  State 
Fair  C'oinini.s.sion  jxTmitted  a 
race  of  high  jjower  automobiles 
on  its  grounds  and  protected  the 
part  assigned  to  si^ctators  from 
tlie  track  by  a  wooden  fence  of 
flimsy  construction,  it  was  held 
liable  for  death  and  injury  of  per- 
son by  an  automobile  which 
broke  tlirough  sucli  fence. 

Conrad  v.  Clauve  (1883),  93 
Ind.  476.  Defendants  were  the 
owners  and  managers  of  an  amuse- 
ment park  to  wliicli  an  aihnission 
fee  was  charged.  A  part  of  tlic 
ground  was  allotted  to  target 
shooting.  Plaintiff  was  not  in- 
fonnetl  upon  entering  the  park 
that  a  part  thereof  wa.s  allotted 
to  target  shooting  and  hitched 
his  horse  within  the  proscribed 
area.  Defendants  were  held  liable 
for  the  value  of  the  horse  which 
was  shot,  u|xjn  the  ground  that 

there  was  a  duty  impcjsed  upon 
defendants  to  inform  plaintiff 
of  the  danger  of  hitching  liis  horse 
within  the  ground  set  aside  for 
target  shooting. 

Thompson  v.  Lowell  (1898), 
170  577;  49  N.  E.  913;  40 
L.  U.  A.  34.').  Where  a  .spectator 
at  a  grove  wius  struck  in  the  eye 
by  a  bullet  fired  by  a  performer 
therein,  he  was  entitled  to  go  to 
the  jury  on  the  question  whether 
defendant  had  taken  due  pre- 
caution to  guard  against  injur>'. 

A  railroad  corix)ration  which 
owned  and  maintained  such  a 
grove  also  held  liable. 

Ilallyburton  v.  Burke  Co. 
(1896),  119  N.  C.  526;  26  S.  E. 
114.  ^^^lere  a  horse,  on  a  race- 
track, l)olted  from  his  course  and 
injured  a  specttitor  who  was 
sitting  on  the  railings,  the  pro- 
prietor of  the  track  was  held  not 



struck  by  a  foul  ball.^^  But  where  the  screen  which  is 
provided  is  inadequate  plaintiff  may  recover.'" 

Nor  is  this  a  duty  owed  to  a  patron  alone,  but  the  pro- 
prietor, it  has  been  held,  owes  a  duty  to  a  trespasser  as 
well,  if  he  knows  of  the  latter's  presence."^ 

The  proprietor  is  liable  to  a  patron  for  insulting  and 
defamatory  language  addressed  to  the  latter  by  a  per- 

Section  100. — Miscellaneous  accidents. 

One  who  operates  a  scenic  railway  is  a  carrier  of  pas- 
sengers and  is  hkewise  bound  to  the  highest  degree  of 

^^  Crane  v.  Kansas  City  Base- 
ball (1912),  168  Mo.  App.  301; 
153  S.  W.  1076.  Plaintiff  had 
purchased  a  seat  in  the  grand 
stand  which  was  protected  against 
danger  of  being  struck  by  foul 
balls.  He  voluntarily  chose  to 
take  a  seat  in  an  unprotected 
area.    Defendant  held  not  liable. 

^°  Edling  v.  Kansas  City  Base- 
ball (1914),  181  Mo.  App.  327; 
168  8.  W.  908.  Plaintiff  was 
witnessing  a  ball  game  on  de- 
fendant's amusement  grounds. 
Plaintiff  was  sitting  in  a  stand 
which  was  screened.  A  foul  ball 
struck  the  screen,  broke  through 
and  hit  plaintiff.  Defendant  was 
held  liable. 

See  also:  Fox  v.  Doiu/herty,  2 
W.  N.  C.  (Pa.)  417;  where  it 
was  held  not  to  be  contributory 

negligence  to  sit  in  the  front  row 
of  the  orchestra. 

''Her  rick  v.  Wixon  (1899), 
121  Mich.  384;  80  N.  W.  117;  81 
N.  W.  333.  The  fact  that  plaintiff 
forced  his  way  into  a  show  tent, 
where  he  was  injured  by  the 
explosion  of  a  giant  firecracker  in 
the  course  of  the  performance, 
will  not  preclude  a  recovery 
based  on  the  proprietor's  negli- 
gence, since  the  duty  of  reason- 
able care  is  owed  even  to  tres- 
passers when  their  presence  is 

See  in  tliis  connection:  Aiufhlrey 
V.  Wilcx  (1917),  91  S.  K.  (S.  C.) 
303;  liamonns  v.  Grand  Rapids 
Iiy.Co.iV.)\7),  160  N.W.  (Mich.) 

''-  fntcrslalc  Am.  Co.  v.  Martin 
(1913),  8  Ala.  App.  481. 



care.'^  Ai\d  one  who  operates  a  "  iiicm'-gf)-roun(l "  may 
not  start  il  until  every  i)asseiiger  in  it  lias  been  seated."* 
A  swing  erected  in  an  amusement  park  must  not  be  main- 
tained in  a  defective  condition  ''  and  the  owner  of  a  park 

''*  Wash.  Luna  Park  v.  Goud- 
rich  (1010),  llOA'ii.  092;  GO  S.  K. 
977.  A  juil(;inent  in  favor  of 
pliiintifT  W11.S  iiffinned.  He  had 
been  :i  pu-ssengcr  in  a  "roller 
coaster"  car,  and  while  therein 
another  car  had  collided  with 
him,  causing  tlie  injury. 

O'Callayhan  v.  Dcllwood  Park 
Co.  (1900),  242  111.  33G;  89  N.  E. 
1005.  One  ojK*rating  a  scenic 
railway  was  lield  to  be  a  carrier 
of  pa.ssengers  and  bound  to  use 
tlie  same  degree  of  care  as  any 
other  carrier  of  passengers. 

Pointer  v.  Mountain  R.  C.  C. 
(1917),  180  S.  W.  (Mo.)  SO."). 
The  rule  of  res  ipsa  lo(iuitur 
on  scenic  railways  not  held  to 

Lunisdiii  V.  Thompson  Scenic 
A??/.  (1000),l.i().\.  1).  (X.  V.)20!); 
114  N.  V.  Supp.  421.  Action 
for  negligence  on  scenic  railway-. 
Verdict  for  jjlaintitT  reversed. 

Sec:  lluncekc  v.  U'.  liriijhUm 
AuHusement  Co.  (1903),  80  A.  D. 
(X.  Y.)  2G8;  80  X.  Y.  Supp.  2(11 ; 
Barrett  v.  Lake  Ontario  Ikach 
Imp.  Co.  (1003),  171  N.  V.  310; 
66   X.   E.   068. 

On  the  question  of  liabilHy  to  a 
trespasser  see:  Aughtrey  v.  Wiles 
(1017),  01  S.  E.  (S.  C.)  303. 
PlaintitT  non-suited  after  injury 
sulTered  on  automobile  race-track 
on  the  ground  that  he  was  a 
trespa.s.ser.  Ramonas  v.  Grand 
Rapids  Ry.  Co.  (1017),  160  X.  W. 
(Mich.)  382. 

^*  Harris  v.  Crawley  (1012), 
170  Mich.  381;  136  X.  W.  356. 
The  (juestion  in  this  was 
whether  defendant  was  negligent 
in  starting  his  "merry-go-round" 
before   plaintiff  was  seated. 

See  Linthicum  v.  Truitt  (1911), 
2  Boyce  (Del.),  338;  80  Atl.  245, 
on  the  (juestion  whether  it  was 
negligence  to  attempt  to  board  a 
"merry-go-round"  while  it  was  in 

^'' Schwab  V.  .[nderson  Sleam- 
ImhiI  Co.  (1011),  ()6  Wjush.  236: 
11',)  Pac.  614.  The  owner  of  a 
park  was  held  not  liable  for  an 
injury  to  the  plaintiff  uix)n  a 
swing  erected  just  outside  the 
limits  of  the  park,  although  thert^ 
is  a  short  and  logical  dissenting 
opinion  by  Judge  Chadwick  which 
gives  the  better  rule. 



is  likewise  liable  to  one  who  is  injured  by  a  turnstile  at 
the  gate7® 

While  one  who  was  riding  on  an  amusement  device  was 
non-suited  by  reason  of  his  failure  to  show  a  faulty  con- 
struction of  the  device/^  it  was  held  that  where  the  ac- 
cident was  caused  by  the  act  of  the  defendant's  employe, 
a  question  of  fact  was  presented  for  the  jury."^ 

To  leave  one's  position  in  a  grand  stand  and  go  to  an 
exposed  part  of  the  field  has  been  held  contributory  neg- 
ligence."^ The  proprietor  of  a  swimming  bath  was  held 
not  liable  because  the  attendants  furnished  by  him  failed 
to  rescue  plaintiff's  intestate.^" 

^«  Marx  V.  Ontario  H.  &  A.  Co. 
(1914),  211  N.  Y.  33;  105  N.  E.  97. 
It  was  held  that  a  sudden  back- 
ward movement  of  a  turnstile 
through  wliich  it  was  necessary 
for  patrons  of  an  amusement 
park  to  pass,  by  one  of  defend- 
ant's attendants,  causing  an  in- 
jury to  a  ticket  holder,  rendered 
the  defendant  liul:)le. 

"  Fennar  v.  Atlantic  Am.  Co. 
(1913),  84  X.  J.  L.  691;  87  Atl. 
344,  Plaintiff  while  riding  on  the 
"Human  Niagara  Falls"  was  in- 
jured. Ilcbl  tliut  in  tlie  absence 
of  any  evidence  to  show  faulty 
construction  or  want  of  repair, 
the  complaint  was  bad. 

"  Hays  V.  Kldor  Am.  Co.  (1912), 
51  Pa.  Sup.  Ct.  420.  A  bamboo 
Blidc  in  an  amusement  park  was 
used    by    plaintilT,    who    alleged 

that  by  reason  of  the  start  or 
shove  given  him  b}'^  the  defend- 
ant's employe  he  was  injured. 
Held  a  question  for  the  jurj'. 

-^  Burns  v.  Herman  (1910),  48 
Colo.  359;  113  Pac.  310.  Where 
defendant  provided  a  grand  stand 
where  the  spectators  were  to  sit 
and  the  plaintiff  voluntarily  left 
the  i)Iacc  furnished  l)y  defendant 
and  went  to  a  place  where  he  was 
in  danger  of  being  injured,  it  was 
held  that  plaintiff  was  guilty  of 
contributory  negligence. 

^^  Levinsky  v.  Cooper  (1911), 
142  S.  W.  (Tex.)  9.59.  Defend- 
ants conducted  a  natatorium,  and 
plaintiff's  intestate,  while  swim- 
ming therein  was  drowned.  Wliile 
it  was  held  that  the  proprietor 
of  the  jilace  was  bound  to  exer- 
cise reasonable  care  in  furnishing 



It  is  a  noKligont  act  for  a  street  railway  company  to 
run  its  car  at  full  speed  opposite  a  point  where  people  are 
leaving  a  theatre  in  large  numbers.*' 

Section  101. — Acts  of  strangers. 

The  i)roi)rietor  is  n(jt  haijle  for  the  acts  of  patrons  or 
strangers  unless  they  are  such  as  could  have  reasonably 
been  foretold. 

"Wliile  the  defendants  were  bound  to  exercise  reason- 
able care  to  protect  their  invitees  from  peril,  they  were 
not  insurers  of  their  safety,  and  if  the  accident  occurred 
through  the  willful  act  of  a  third  party,  the  defendants 
could  not  Ijc  held  liable  therefor."  *- 

Depredations  l)y  boys  committed  at  intervals  would  be 

attondants,  lie  was  not  responsible 
if  the  attendants  failed  to  rescue 
the  intestate. 

•"  Fuirbdiiks  V.  Montreal  St.  Ry. 
Co.  (Can.),  311).  L.R.72S. 

See  generally  on  accidents: 
Cmunneau  v.  Muskegon  (190C), 
145  Mich.  .'il4;  lOS  N.  W.  720; 
Phillips  V.  Wisconsin  State  (l.S,S4), 
60  Wisconsin,  401;  19  N.  W.  377; 
Iliggins  v.  Franklin  Co.  (lOOG), 
100  Maine.  r^Cur,  62  Atl.  70.S; 
Currier  v.  Boston  Music  Hall 
(1S8S),  1.35  414;  Hart  v. 
Wash.  Park  (1895),  157  III.  9; 
41  N.  E.  620;  Scott  v.  Unit^rsily 
of  Mich.  (190S),  152  Mich.  6.S4; 
116  N.  W.  624;  Selinns  v.  Ver- 
mont  State    (18SS),   60   Vt.    240; 

15  Atl.  117;  Stair  v.  Kane  (1907), 
156  Fed.  (C.  C.  A.)  100;  Decatur 
V.  Porter  (1907),  137  111.  App.  448; 
George  v.  Univ.  of  Minn.  (1909), 
107  Minn.  424;  120  X.  W.  750. 

'^-Meeker  v.  Smith  (1903),  84 
A.  D.  (N.  Y.)  1 1 1 ;  81  N.  Y.  Supp. 
1007.  PlaintifT's  intestate  while 
visiting  defendant's  amusement 
park  was  killetl  by  the  falling  of  a 
jack,  a  part  of  an  apparatus  used 
in  defendant's  park.  The  ac- 
cident occurred  through  the  will- 
ful act  of  a  stranger. 

See  also:  Williarns  v.  Mineral 
C.  P.  A.  (1905),  128  Iowa,  32; 
102  X.  W.  78;?;  Cretnore  v.  Huber 
(1897),  18  A.  D.  (X.  Y.)  231; 
45  X.  Y.  Supp.  047. 


something  to  put  the  proprietor  on  his  guard,  and  he 
would  be  bound  to  guard  against  future  acts  of  a  Uke 
nature;  but  if  no  prior  acts  had  occurred,  he  would  not 
be  hable  for  the  injury  sustained  on  this  occasion. ^^ 

Section  102. — Assault. 

The  proprietor  of  a  theatre  owes  his  patron  the  duty 
of  protecting  him  against  assault,  both  of  the  theatre 
employes  and  strangers.  "Common  carriers,  inn-keepers, 
merchants,  managers  of  theatres  and  others  who  invite 
the  pubUc  to  become  their  patrons  and  guests,  and  thus 
submit  personal  safety  and  comfort  to  their  keeping, 
owe  a  more  special  duty  to  those  who  may  accept  such 
invitation.  Such  patrons  and  guests  have  a  right  to  ask 
that  they  shall  be  protected  from  injury  while  present  on 
such  imdtation  and  particularly  that  they  shall  not  suffer 
wrong  from  the  agents  and  servants  of  those  who  invited 
them."  ^^    The  proprietor  is  in  duty  bound  to  maintain 

^^  Flanagan  v.  Goldberg  (1910),  tions,  or  had  done  so,  and  there- 

137  A.  D.  (N.  Y.)  92;  122  N.  Y.  upon  negligently  failed  to  protect 

Supp.    205.      Plaintiff    attended  those  invited   to   the   entertain- 

a  motion-picture  show  and  during  ment." 

the  performance  a  board  fell  upon  ^*  Dickson  v.   Waldron   (1893), 

her.  135  Ind.  507;  34  N.  E.  506;  35 

'<If  defendants   negligently  so  N.  E,  1.    The  court  held  that  in 

placed  the  hoard  that  it  fell  and  such  case,  where  the  duty  of  the 

(lid  the  injvny,  they  are  liable,  servant  was  to  preserve  order  in 

They  would  not  l)e  liable  for  an  the   theatre   and   to   remove   of- 

injury  caused  by  a  board  thrown  fensive  patrons,  the  servant  was 

into   the   hall,   unless   the   facts  of  necessity  the  judge  whether  the 

show  that  they  had  knowledge,  conduct  of  the  patron  was  such 

actual  or  constructive,  that  the  as  to  require  his  removal  and  that 

boys  were  committing  depreda-  the  mastcM-  was  lial)le  wliere  the 



order  and  (|uiol  during  ])orformanc('s  in  the  thoatro  and 
may  request  patrons  to  be  (juiet,  l)ut  this  should  l>e  done 
politely  and  without  any  undue  humiliation." 

While  the  i)roprietor  as  a  general  rule  is  not  respcnisihlc 
for  the  act  of  other  patrons'^''  he  is  nevertheless  liable  for 
such  acts  when  committed  tlirough  his  agency  or  where 
he  has  had  reason  to  anticipate  such  acts  and  could  have 
taken  measures  to  prevent  them.^"     He  is  likewise  an- 

scrv'iiiit  erred,  and  that  tliis  rule  ^  Cremore     v.     Iluber     (1S97), 

ai)i)lied    to   a   special    policeman      18  A.  D.  (X.  Y.)  231;  45  N.  Y. 

ennuficd  l)y  the  theatre  proprietor. 

Oakluiul  V.  Bingham  (18U2), 
4  Ind.  App.  545;  31  N.  E.  383. 
One  conducting  an  amusement 
park  was  held  liable  for  injuries 
sustained  by  a  patron  through  an 
a.ssault  made  by  a  gatekeeper. 

Fowler  v.  Holmes  (1889),  3 
N.  Y.  Sui^p.  816.  A  person  col- 
lecting tickets  at  entrance  to 
defendant's  theatre  assaulted 
plaintiff  who  attempted  to  enter, 
having  a  ticket  of  admission. 
Held  that  the  trial  court  properly 
submitted  the  ([uestion  to  the 
jury  whether  defendant's  ticket 
taker  was  acting  within  the  scope 
of  his  employment  at  the  time 
he  a.ssaulted  jjlaintiff. 

See  also:  Kj)stein  v.  (Jurdun 
(1909),  114  X.  Y.  Supp.  438; 
Kesslcr  v.  Deutsch  (1904) ,  44  Misc. 
(X.  Y.)  209;  88  X.  Y.  Supi).  84G. 

*'  Rtisso  V.  Orpheum  Theatre 
(1914),  GO  So.  (La.)  385. 

Supj).  947. 

"'  Mastad  V.  Swedinh  Brethrnt 
(1901),  83  Minn.  40;  85  X.  W. 
913.  A  person  managing  and 
controlling  a  puljlic  place  of 
amusement,  to  which  he  invites 
the  public,  on  payment  of  an 
admission  fee  to  attend,  and  at 
which  place  he  sells  to  his  cu.s- 
tomcrs  and  patrons  intoxicating 
licjuors,  and  who  sells  such  licjuors 
to  one  in  attendance  at  such  place 
and  thereby  renders  him  drunk 
anil  disorderly,  well  knowing 
that  when  in  that  condition  he 
is  likely  to  commit  assaults  u[H)n 
others  without  or  jirov- 
ocution  is  bound  to  exercise 
rea.sonable  care  to  protect  his 
other  customers  and  patrons  from 
such  assaults  and  insults,  and 
for  a  failure  to  do  so  is  liable  in 
tlaniages  at  the  suit  of  one  as- 
saulted aiul  injured. 

Scc>:      !  iiih'iiniijinlis    V.     Dairson 



swerable  for  the  insulting  and  abusive  language  of  the 

Colored  people  may  not  be  ejected  from  the  theatre  ^^ 
and  for  an  assault  committed  by  the  servants  of  the  pro- 
prietor, he  is  liable. 

A  patron  who  occupies  a  seat  to  wliich  he  is  not  en- 
titled may  be  asked  to  give  it  up,  and  if  he  refuses  the 
usher  or  other  servant  may  use  such  reasonable  degree 
of  force  as  will  accompHsh  the  purpose.^"    But  he  must 

(1903),   31    Ind.    App.    605;    68         ^^  Drew  v.  Peer  (1880),  93  Pa. 

N.  E.  909.  234.    Defendant  held  liable  for 

»» Interstate  Am.  Co.  v.  Martin     ejecting  a  colored  man  and  his 

(1913),  8  Ala.  App.  481;  62  So. 
404.  The  defendant,  the  pro- 
prietor of  a  theatre,  was  held 
liable  in  damages  to  plaintiff,  a 
patron  of  the  theatre,  for  the  act 
of  a  performer  in  addressing  to 
plaintifT  insulting  and  defamatory 

The  court  said:  "It  is  not  to  be 
doubted  that  one  of  those  duties 
is  to  accord  to  the  ticket  holder 
civil  treatment  while  he  is  exer- 
cising the  privilege  for  which  he 
has  contracted.  This  duty  is 
one  that  may  be  breached  by  the 
proprietor  himself  or  by  mis- 
treatment at  the  hands  of  an 
employe  while  acting  within  the 
scope  or  range  of  his  employ- 
ment, and  the  mistreatment  may 
consist  in  the  use  of  uncivil  and 
offensive  language  afldressed  to  or 
spoken  al)out  the  tirkot  holder." 

wife  from  his  theatre. 

Indianapolis  v.  Dawson  (1903), 
31  Ind.  App.  605;  68  N.  E.  909. 
Defendant,  a  street  railway  com- 
pany, having  knowledge  of  a 
conspiracy  to  attack  all  colored 
persons  who  attended  at  its 
amusement  park,  which  it  owned, 
transported  a  negro  to  its  park. 
It  was  held  liable  for  injuries 
sustained  by  plaintiff  because 
of  an  assault  at  the  park. 

^  Hyde  v.  Toronto  Theatre 
(Can.),  17  O.  W.  R.  380.  The 
usher  may  use  reasonable  force 
in  ejecting  from  the  theatre 
one  whose  ticket  does  not  en- 
title him  to  that  particular  seat. 

See  also:  Macdmmn  v.  Duff 
(1887),  14  Daly  (N.  Y.),  315; 
Younger  v.  Jwlah  (1892),  111 
Mo.  303;  Ijcuus  v.  ArnoUi  (Eng.) 
(1830),  4  C.  and  P.  3.54. 



ho  Rivpn  a  roasonahlo  opportunity  to  explain,^'  ami  if  it 
turns  out  that  the  i)ropri('tor  has  made  the  mistake,  the 
patron  may  recover  punitive  as  well  as  compensatory 

said  scat  as  'taken'  could  pve 
the  prosecutor  a  riglit  to  tliat 
which  someone  else  had  previously 
bought  and  paid  for.  .  .  ." 

^^  Armstrong  v.  Stair  (1914), 
217  Miiss.  r>34;  105  N.  E.  442. 
Plaintiff  purcha.setl  a  balcony 
ticket.  He  gave  it  to  the  usher 
who  left  him  standing,  and  plain- 
tiff then  occupied  the  hust  seat. 
I.ator,  when  asked  for  his  check 
he  tried  to  account  for  its  absence, 
and  a  special  officer  was  sent  for. 
The  latter  took  him  into  custody 
and  brought  him  to  a  ix>lice 
station  where  he  wa-s  forced  to 
remain  all  night.  IlcUt  that  the 
defendants,  including  the  man- 
agers of  the  theatre,  were  liable 
for  a.s.sault,  false  imprisonment 
and  malicious  prosecution. 

See  in  this  connection:  Weiss  v. 
Skinner  (1915),  178  S.  W.  (Tex.) 
.'i4.  For  wrongful  ejection  from 
the  theatre  because  of  the  pur- 
chase of  a  ticket  for  another  i^er- 
formance  than  that  attendetl,  the 
manager  of  the  theatre  was  heUl 
not  liable  in  contract,  because  he 
was  not  a  party  thereto,  nor  in 
tort,  for  he  did  not  eject  plaintiff. 
»-  Webcr-Stnir  v.  Fisfier  (1009), 

Commornrcnlth  v.  Poirell  (1873), 
10  Phila.  (Pa.)  ISO.  "A  visiUjr 
at  a  theatre  or  other  place  of 
amusement  is  entitled  to  a  seat. 
This  right  to  some  extent  de- 
jMMids  upon  the  character  of  his 
ticket.  If  for  a  reservetl  seat, 
he  has  a  right  to  that  particular 
seat.  If  not  reserved,  then  to 
any  one  he  may  find  unoccupied, 
and  which  had  not  i)reviously 
been  sold  to  another.  I  instructed 
the  jury  that  if  the  prosecutor 
selected  a  seat  in  that  portion  of 
the  building  called  for  by  his 
ticket,  and  that  there  was  nothing 
upon  the  said  seat  to  indicate 
that  it  was  'taken',  and  no 
notice  had  in  fact  been  given  pros- 
ecutor i)rior  thereto  that  it  had 
been  sold  to  someone  else,  he 
had  a  right  to  occupy  it,  and  the 
act  of  the  d(>fen(l:uit  in  ejecting 
liim  therefrom  was  an  a.ssault  and 
battery.  Subsequent  reflection 
has  satisfied  me  that  it  is  not  so 
much  a  (juestion  of  notice,  jis  of 
whether  there  had  l)een  an  actual 
bona  fide  .sale  of  that  particular 
seat  to  a  third  party.  If  .so,  no 
neglect  on  the  part  of  the  i)n>- 
prietor  of  the  niusruiu  in  marking 



The  patron  also  owes  a  duty  to  the  proprietor  to  con- 
duct himself  in  a  peaceable  and  orderly  manner,  to  retain 
the  seat  sold  to  him  and  to  refrain  from  causing  any  riot 
or  disturbance.^^  He  cannot  hold  the  proprietor  Hable 
where  he  has  violated  that  duty. 

119  S.  W.  (Ky.)   195.     Plaintiff         In  this  case  plaintiff  was  ac- 
received  evening  tickets  instead      companied  by  two  other  people, 

of  tickets  for  a  matinee  by  a 
mistake  of  the  theatre  employe. 
Held  that  he  was  entitled  to 
punitive  damages. 

8'  Lewis  V.  Arnold  (Eng.) 
(1830),  4  C.  and  P.  354.  Action 
for  assault  and  false  imprison- 
ment. Plaintiff  had  bought  a 
ticket  for  the  pit.  There  being 
standing  room  only,  he  attempted 
to  climb  into  a  box.  From  this 
he  was  ejected  and  escorted  out 
of  the  theatre.  An  altercation 
arose,  and  plaintiff  was  arrested. 
Chief  Justice  Tindall  said:  "Even 
if  this  plaintiff  had  been  informed 
that  there  was  room  in  the  pit 
of  this  theatre  when  there  was 
not,  which  in  this  evidence  is 
matter  of  doubt,  he  had  still  no 
right  to  go  into  this  private  box. 
His  proper  course,  if  there  was  not 
room,  was  to  go  out  of  the  theatn; 
and  demand  the  return  of  his 
money.  .  .  .  Mr.  Arnold  has 
tJKTcfon!  a  right  fo  turn  the 
plaintiff  out  of  the  private  box, 
using  no  more  force  than  was 

and  in  the  altercation  that  took 
place  outside  of  the  theatre  one 
of  these  people  struck  a  blow. 
Held  that  even  if  plaintiff  was 
passive,  all  three  were  engaged 
in  a  common  purpose,  and  he  was 
therefore  nonsuited. 

Clifford  V.  Brandon  (Eng.) 
(ISIO),  2  Camp.  358.  Action  for 
assault  and  false  imprisonment. 
Plaintiff  had  entered  Covent 
Garden  during  a  disturbance 
in  the  audience  due  to  the  raise 
in  prices  of  the  seats.  On  going 
out,  although  not  actively  taking 
part  in  the  rioting,  he  was  ar- 
rested. Subsequently  ho  was  dis- 
charged and  on  this  action,  Chief 
.lustice  Mansfield  said:  "The  jury 
will  consider  whether  Mr.  Clifford 
was  an  instigator  of  the  riot, 
which  one  of  his  witnesses  has 
represented  as  resembling  a  i\\\\\v- 
rel  among  a  thousand  drunken 
sailors.  The  law  is  that  if  any 
person  encourages  or  promotes, 
or  takes  part  in  riots,  whether 
by  words,  signs  or  gestures,  or 
by  wearing  the  badge  or  ensign 

WHO  IS   i.i\ni,F. 


The  rule  as  to  jninitivc  daina^<'s  is  that  whore  the 
assault  was  wanton  or  N'icious,  such  damages  are  recover- 
able. Proof  of  knowledge  of  viciousness  of  the  servant 
has  been  held  necessar>'  in  one  state  and  not  necessary 
in  another.^'  It  is  always  for  the  jury  to  pass  on  the 
(question  whether  the  manager  himself  instigated  the 
assault,^'  and  where  the  reason  assigned  for  the  eject- 
ment was  that  the  ]xitron  was  drunk  and  disorderly, 
evidence  showing  that  on  i)rior  occasions  he  was  not 
drunk  and  disorderly  is  inadmissible.^'^ 

Section  103. — Who  is  liable. 

The  general  rule  is  that  the  proprietors  of  parks,  fairs 
and  amusement  grounds  are  liable  for  iujiu'ies  sustained 
because    of    the    negligence    of    their    concessionaires,'-'^ 

of  the  rioters,  he  is  liimself  to 
1)0  eonsideretl  ii  rioter.  ..." 

See:  lim>io  v.  Oipheum  Theatre 
(1914),  60  So.  (La.)  385;  Greg- 
ory V.  Brun-fiu'ick  (Eng.)  (1843), 
GMan.&  (1.205. 

»*  Walsh  V.  Ilijdc  A  Bchman 
Amiuic.  Co.  (190G),  113  A.  D. 
(N.  Y.)  42;  98  X.  Y.  Supp.  9G0. 
PlaintifT,  :i  ticket  holder,  was 
ejected  from  defendant's  tlieatre 
and  was  badly  beaten  and  bruised. 
\'erdiet  granting  specifie<l  amount 
for  eom|)ensatory  damages  and 
an  additional  amount  for  puni- 
tive damages  was  modifieil  to 
the  extent  of  disallowing  the  sum 
awardctl     as     jMitiitive     damages 

upon  the  ground  that  no  i)roof 
had  been  adduced  showing  knowl- 
edge on  defendant's  jjart  of  vi- 
ciousnc.s.s  of  his  servants. 

Hut  see:  Weber-Stair  v.  Fisher 
(1909),  119  S.  W.  (Ky.)  195, 
where  punitive  damages  were 

-*  Melts  V.  Charleston  Theatre 
(1910),  89  S.  E.  (S.  C.)  .389. 

^  Wells  Am.  Co.  v.  Mean^ 
(1911),  5G  So.  (Ala.)  .594. 

'•  linbicz  V.  liirerriew  Sharp- 
shooters (1911),  IGl  111.  App.  3.5G; 
atT'd  25G  111.  24:  99  X.  E.  8G0. 
.V  general  admission  was  charged 
to  each  pors(m  entering  the  |);irk. 
Hrlil  th:it  proprietor  of  park  wiis 



although  in  one  or  two  states  it  has  been  held  otherwise.^^ 
The  test  of  liability  seems  to  be  a  participation  in  the 

liable  for  injuries  sustained  while 
on  concessionaire's  apparatus. 

Dietze  v.  Riverview  Park  (1913), 
181  111.  App.  357. 

Smith  V.  Cumberland  Soc. 
(1913) ,  163  N.  C.  346;  79  S.  E.  632. 
Plaintiff,  while  attending  a  fair, 
was  requested  to  take  hold  of 
the  rope  of  a  balloon.  On  doing 
so,  his  foot  was  caught  and  he 
was  carried  up.  Nonsuit  was 
reversed,  as  there  was  sufficient 
evidence  to  have  gone  to  the  jury. 

Turgeon  v.  Connecticut  Co. 
(1911),  84  Conn.  538;  80  Atl. 
714.  This  case  holds  that  it 
makes  no  difference  whether  an 
admission  fee  is  charged  with  re- 
spect to  the  lial)ihty  of  a  pro- 
prietor of  an  amusement  park 
where  the  patron  is  injured  while 
on  a  device  operated  by  a  con- 
cessionaire. The  court  holds  that 
the  defendant  is  not  relieved 
from  his  obligation  because  the 
device  is  run  by  an  independent 
contractor  and  cites  the  following 
cases  in  support  of  its  position: 
Note  to  Ilollis  V.  Kansas  City  etc. 
Assoc.  (1907),  14  L.  R.  A.  (N.  S.) 
284;  205  Mo.  508;  103  S.  W.  32; 
Thornton  v.  Agricultnral  Society 
fl(K)2),  97  Mo.  lOS;  .53  Atl.  979; 
Schcck      v.      J'laltdcntschc      Volk- 

best  (1900),  64  N.  J.  L.  624;  46 
Atl.  631;  Richmond  etc.  Ry.  Co.  v. 
Moore  (1897),  94  Va.  493;  27 
S.  E.  70;  Texas  State  Fair  v. 
Brittain  (1902),  118  Fed.  (C.  C. 
A.)  713;  Conradt  v.  Clauve  (1883), 
93  Ind.  476;  Thompson  v.  Lowell 
etc.  Co.  (1898),  170  Mass.  577; 
49  N.  E.  913;  Blakeley  v.  White 
Star  Line  (1908),  154  Mich.  635; 
118  N.  W.  482;  Dunn  v.  Agri- 
cultural Society  (1888),  46  Ohio 
St.  93;  18  N.  E.  496;  Mastad,  v. 
Swedish  Brethren  (1901),  83  Minn, 
40;  85  N.  W.  913;  Fox  v.  Buffalo 
Park  (1897),  21  A.  D.  (N.  Y.) 
321;  47  N.  Y.  Supp.  788;  Broum 
V.  BatcMler  (1908),  29  R.  I.  116; 
69  Atl.  293;  2  Cooley  on  Torts 
(3d  Ed.),  p.  1259. 

^^Knottnerus  v.  North  Park 
(1892),  93  Mich.  348;  53  N.  W. 
529.  Plaintiff  was  injured  while 
riding  on  a  switch-back  railway 
operated  by  owner  at  defendant's 
pleasure  resort.  The  owner  of  the 
switch-back  railway  was  a  con- 
cessionaire of  defendant.  De- 
fendant was  held  not  liable. 

Smith  v.  Benick  (1898),  87 
Md.  610;  41  Atl.  56.  A  balloonist 
was  engaged  by  defendant  to 
make  as('ei\sions  in  defendant's 
park.     The    balloonist  Furiiislied 

WHO    18    LIABLE 


profits  dorivod  from  the  payment  of  adniission  and  otlier 
sources,  and  a  reservation  of  some  rights  in  tlie  premises, 
even  though  leased  away.'*'*  But  where  the  proprietor 
parts  witli  all  control  he  is  not  liable. ^"^    Even  where  the 

his  own  help.  One  of  the  poles 
used  ill  connection  with  the  as- 
censions fell  and  caused  an 
injury  to  plaintilT.  The  balloonist 
was  a  competent  person.  Held 
that  the  balloonist  was  an  inde- 
l)en(lent  contractor  and  that  de- 
fendant having  used  care  in  en- 
gaging him,  was  not  liable  for 
injuries  .sustained  by  plaintiff 
through  an  act  of  the  indepen- 
dent contractor.  There  was  a 
dissenting  opinion  holding  that 
defendant  should  have  used  suf- 
ficient care  to  have  foreseen  such 
an  accident. 

^  Stickcl  V.  Rifcrviciv  Sharp- 
shooters (1910),  159  111.  App.  110. 
Where  the  proprietor  of  an 
amusement  resort  receives  a  share 
of  the  receipts  of  one  of  his  con- 
cessionaires he  is  liable  for  in- 
juries sustained  by  a  patron  on 
the  structure  or  apparatus  of  the 

Wichita  Falls  Co.  v.  Adams 
(1912),  146  S.  W.  (Tex.)  271.  An 
amusement  park  pavilion  was 
owned  by  a  railroad.  Plaintiff's 
son  wjis  injured  therein.  If  rid 
that    the    company    was    hable 

for  while  it  had  leased  away 
some  rights  therein,  it  has  also 
reserved  some,  and  .so  was  charge- 
able with  negligence. 

"« McCain  v.  Majestic  Bldg. 
(190S),  120  La.  306;  45  So.  258. 
The  owner  of  a  theatre  held  not 
liable  for  injury  cau.sed  to  one 
who  fell  on  the  siilewalk  in  fnjnt 
of  it,  as  he  was  no  longer  in  con- 
trol, but  had  leased  the  theatre 

Mirsky  V.  Adkr  (1910),  123 
N.  Y.  Supp.  816.  Where  the 
defendant  established  that  he 
hatl  leased  the  theatre  to  some 
tliinl  party  rcser\'ing  .solely  the 
right  to  use  it  on  Sundays  anil 
where  the  evidence  also  showed 
that  even  on  Sundays  the  de- 
fendants had  leased  it  to  other 
IKTsons;  Held  that  defendant 
was  not  in  control  of  the  theatre 
and  was  not  liable  for  injuries 
sustaintnl  by  a  patron  while  on 
the  premises  on  a  Sunday. 

See:  Edwards  v.  N.  Y.  &  H.  R. 
R.  (1885),  98  N.  Y.  245;  Cok 
V.  Rome  Sav.  Bank  (1916),  96  (N.  Y.)  ISS;  161  X.  Y. 
Supp.  115. 



lessee  is  holding  over  after  the  term  of  his  lease,  the  pro- 
prietor is  nevertheless  Uable.^"^ 

One  who  is  not  the  proprietor,  but  is  in  charge  of 
grounds  where  exhibitions  are  given,  participates  in  the 
distribution  of  advertising  matter,  and  derives  a  share  of 
the  proceeds  taken  in  from  the  use  of  apphances  upon 
which  the  plaintiff  was  injured,  is  hable.^°- 

It  occasionally  happens  that  a  member  of  the  company 
playing  in  a  theatre  is  injured  by  a  stage-hand.  The  rule 
here  is  that  although  the  theatre  was  leased  for  a  per- 
centage of  the  gross  receipts,  such  stage-hand,  hired  and 
paid  by  the  proprietor,  while  temporarily  under  the  con- 
trol of  the  company,  is  actually  the  servant  of  the  pro- 
prietor, and  the  latter  is  liable  for  his  tortious  acts.^"^ 

i<"Ox/o?-(Z  V.  Leathe  (1896),  165 
Mass.  254;  43  N.  E.  92.  De- 
fendant leased  his  building  for 
four  days  for  use  in  theatrical 
entertainments.  He  had  charge 
of  box  office  until  specific  sum 
was  received  l)y  him  and  also 
furnished  the  lights.  He  was 
held  liable  for  injuries  sustained 
by  plaintiff  by  reason  of  the 
falling  of  a  platform  at  a  time 
when  the  lessee  was  holding  over, 
ujTon  the  same  terms,  after  the 
e.\])iration  of  the  original  term. 

'"2  IIolUs  V.  /v««.srt.s  City  (1907), 
205  Mo.  508;  103  S.  W.  .32.  One 
having  general  charge  of  grounds 
where  exhibitions  are  given,  par- 
ticipates   in   distribution   of   ad- 

vertising matter  and  derives 
share  of  proceeds  taken  in  from 
use  of  appliance  upon  which 
plaintiff  was  injured  is  liable. 

See  also:  Stickel  v.  Riverview 
Sharpshooters  (1910),  159  111. 
App.  110;  Wichita  Falls  Co.  v. 
Adam  (1912),  146  S.  W.  (Tex.) 

'»' Doiw  v.  Henderson  (1895), 
85  Hun  (N.  Y.),  300;  32  N.  Y. 
Supp.  953.  Plaintiff,  while  act- 
ing as  directress  for  the  Julia 
Marlowe  company,  was  injured 
by  the  negligent  act  of  a  stage- 
hand, who  was  under  the  g(>neral 
employ  of  tlie  (Icfcndnnt.  Tlu; 
fact  that  for  a  percentage  of  tlie 
receipts  the  defendant  had  agreed 



On  the  other  liuiid,  tlie  i))()i)ri('t()r  of  the  liicutre  is  not 
lial)l('  for  the  torts  of  the  company's  own  employes  even 
thougli  the  company  is  playing  under  a  Uke  arrangement 
of  a  i)crcentage  of  the  gross  receipts."" 

The  lessees  of  a  theatre  were  held  liable  for  an  assault 
committed  l)y  an  usher  in  their  employ,  on  the  theory 
that  while  they  were  not  joint  tort-feasors  they  were 
employers,  and  as  long  as  the  usher  was  acting  within  the 
scope  of  his  duty,  they  were  responsible  for  his  acts.^°^ 

Section  104. — Property  lost  in  theatre. 

The  theatre  proprietor  is  no  insurer  of  the  property  of 
his  patrons,  where  the  same  has  not  been  committed  to 
liis  care  especially.    And  where  so  committed  he  can  only 
be  held  liable  for  his  negligence."^''' 
to  furnish   t(j   tlie  company   the      appeared   against   him   in   court, 

staf^e,  scenery,  and  stage-hands, 
dill  not  aher  his  hal)ility.  They 
were  still  his  servants.  HeUl 

*"*  Thomas  v.  Springer  (1909), 
VM  \.  1).  (X.  Y.)  040;  119  \.  Y. 
Supp.  400.  .Mthough  the  tiieatre 
proprietor  retained  pos.session  ami 
control  of  the  house  and  sold 
the  tickets  of  admission  he  was 
held  not  estopix'tl  from  denying 
that  the  employes  of  the  theatri- 
cal company  were  his  .servants. 

^"'' Kpstein  v.  Gordon  (1909), 
114  N.  Y.  Supp.  438.  The  usher 
of  a  theatre  took  hold  of  plaintilT's 
coat,  '  called  him  vile  names, 
struck    him,    arrested    him,    and 

where  plaintiff  was  discharged. 
There  wa.s  no  justification. 

Held  that  the  question  pre- 
sented for  the  jury  was  whether 
the  usher  was  acting  within  the 
scojx)  of  his  duty. 

"It  is  true  that  there  Ls  no 
proof  tending  to  show  that  the 
defendants,  (the  le.ssees)  or  either 
of  them,  in  any  way  ijei-sonally 
participated  in  the  misconduct 
complained  of,  and  neither  of 
them  can  be  held  liable  as  joint 
tort-feji.sors;  but  this  fad  does 
not  relieve  them  from  their  liability 
as  employers  of  the  »*7/rr." 

'"•  Faltison  v.  llammerstein 
(1896),  17  Misc.  (X.  Y.)  375;  39 



N.  Y.  Supp.  1039.  "The  man- 
ager of  a  theatre,  in  the  absence 
of  a  special  agreement,  is  not, 
unUke  an  innkeeper  and  common 
carrier  of  goods,  upon  which 
classes  the  common  law,  from 
motives  of  public  policy  then 
prevailing  imposed  an  extraor- 
dinary liability,  an  insurer  of 
his  patron's  property  though  the 
property'  may  consist  of  apparel 
such  as  is  necessarily  or  usually 
worn  by  the  patrons  and  laid 
aside  by  them  while  attending 
the  play.  Hisliability  is,at  most, 
that  of  every  person  except  inn- 
keepers and  common  carriers  of 

It  was  also  held  that  the  burden 
was  on  the  plaintiff  to  show  neg- 
ligence on  the  part  of  the  de- 

See  generally  on  this  proposi- 
tion the  following  non-theatrical 
cases:  Barnes  v.  Stem  Bros. 
(1915),   89   Misc.    (X.    Y.)    385; 

151  N.  Y.  Supp.  887;  Wentworth 
v.  Riggs  (1914),  159  A.  D.  (N.  Y.) 
899;  143  N.  Y.  Supp.  955;  Mc- 
Allister V.  Simon  (1899),  27  Misc. 
(N.  Y.)  214;  57  N.  Y.  Supp.  733; 
Wamser  v.  Browning  King  (1907), 
187  N.  Y.  87;  79  N.  E.  861;  Bun- 
mll  v.  Stern  (1890),  122  N.  Y. 
539;  25  N.  E.  910;  Woodruff  v. 
Painter  (1892),  150  Pa.  91;  24 
Atl.  621;  Bradncr  v.  Mullen 
(1899),  27  Misc.  (N.  Y.)  479; 
59  N.  Y.  Supp.  178;  Appleton  v. 
Welch  (1897),  20  Misc.  (N.  Y.) 
343;  45  N.  Y.  Supp.  751;  Buttman 
v.  Dennett  (1894),  9  Misc.  (N.  Y.) 
462;  30  N.  Y.  Supp.  247;  Bird  v. 
Everhard  (1893),  4  Misc.  (N.  Y.) 
104;  23  N.  Y.  Supp.  1008;  Del- 
mour  V.  Forsythe  (1911),  128  N.  Y. 
Supp.  649;  Montgomery  v.  Ladj- 
ing  (1899),  30  Misc.  (N.  Y.)  92; 
61  N.  Y.  Supp.  840;  Poioers  v. 
O'Neill  (1895),  89  Hun  (N.  Y.), 
129;34N.  Y.  Supp.  1007. 


THE    PUBLIC    (continued) 


Sec.  lUo.  Wliat    is    "Motion    picture,"    "Theatrical    performance," 

106.  Necessity  for  Hcensc. 

107.  Power  to  license  discrctioiiary — Revocation. 
lOS.  Extent  of  discretionary  power. 

109.  Right  to  license  on  condition. 

Section  105. — What  is  "  Motion  picture,"  **  Theatrical 
performance,"  "  Theatre." 
Just  whut  constitutes  each  particular  form  of  theatrical 
entertainment  cannot  be  stated  with  any  degree  of  finality. 
Even  as  between  the  several  kinds  of  pictures,  such  as 
motion-pictures  and  stereopticons,  the  statutes  of  some 
states  have  differentiated.'  And  it  has  boon  a  mooted 
question  whether  a  motion  picture  exhiijition  given  in 
conjunction  with  some  other  business  comes  within  the 
letter  and  spirit  of  statutes  regulating  motion  i)ictures 
generally. - 

^  Block     V.     City     of     Chirngn  ■  Boisseau    v.    Scula    Am.    Co. 

(l!)0()),239Ill.251;S7X.K.  1011.  (Can.)   (1013),  22  Can.  Cr.  Ca.s. 

An  ordinance  which  referred  only  .'Jl ;  Edward  v.  McClcUan  (VM)), 

to    motion-picture    licen.^es,    and  US    X.    V.    Supp.    ISl;    ll'eusN 

not    to    stereopticon    exhibitions  blalt  v.  Bingham  (190S),  5S  Misc. 

was  held  constitutional.  (N.  Y.)  328;   109  X.  Y.  Supp. 



However,  there  is  no  longer  any  uncertainty  as  to  the 
status  of  such  an  entertainment.  In  the  early  case  of 
Edison  V.  Lubin  ^  a  motion  picture  was  held  to  be  for 
purposes  of  copyright  merely  a  series  of  photographs. 
Places  where  they  were  exhibited  were  not  required  to  be 
licensed.  Later  on,  with  their  development  and  growing 
popularity,  licensing  restrictions  became  the  rule  in  all 
the  states.  Harper  v.  Kalem,^  which  for  the  purpose  of 
copyright  stamped  the  exhibition  as  a  dramatic  enter- 
tainment, brought  it  within  the  then  existing  statutes 
regulating  theatrical  entertainments,  and  really  made  it 
unnecessary  and  superfluous  to  pass  special  restrictions. 

A  motion  picture  is  to  all  intents  and  purposes  a  theat- 
rical or  dramatic  exhibition,^  and  decisions  which  seek 
to  draw  a  distinction  between  it  and  the  spoken  drama 
are  compelled  to  resort  to  quibbling.''  X  statute  which 
requires  a  license  for  a  dramatic  exhibition  or  entertain- 
ment requires  a  license,  unless  expressly  excepted,  for  a 
motion  picture. 

545;  Economopoulos  v.  Bingham  forbids  all  performances  of  any 

(1907),    109    N.    Y.    Supp.    728;  character   in   a   place   of   public 

CotinnonweaUh  v.   Spiers   (1912),  amusement  on  Sunda3\    That  the 

51  Pa.  Super,  (,'t.  59.  phrase   "any   other  entertainment 

^Edison  V.  Lubin  (1903),  122  of  the   stage"   is    broad    enough 

Fed.  (C.  C.  A.)  240.  to    include    any    public    e.xhibi- 

*  Kalem  v.  Harper  (1911),  222  tion  whatsoever  given   upon  the 

U.  S.  55;  32  Sup.  Ct.  20.  stage. 

■■'Matter  of  City  nj  New   York  '■  Kd wards  v.  McClellan  (1909), 

{re  Ilammcrslein)  (1907),  57  Misc.  118  N.  Y.  Supp.  181.    It  was  held 

(X.   Y.)    52;    108   N.    Y.   Supp.  that  a  motion-picture  exhibition 

197.     field  that  Section  MSI  of  was  not  a  "pubHc  show"  within 

the  Greater  New  York  Ciiarter  tiie  meaning  of  a  Sunday  statute. 

WHAT    I>    "MOTION     I'KTLKE,       ETC. 


Tho  courts  have  been  greatly  divi(ied  on  what  consti- 
tutes a  "theatrical  performance,"  and  have  included  in 
that  category  and  demanded  a  Hcense  of  an  orchestral 
concert  given  on  a  raised  dais,"  a  performance  consisting 
of  the  singing  of  a  song  at  a  piano, ^  a  pantomime,'-*  motion 
pictures  shown  in  an  ice-cream  saloon,'"  motion  pictures 

'  Mayor  etc.  of  Xeic  York  City 
V.  Eden  Mmee  (1886),  102  X.  V. 
593;  8  X.  E.  40. 

»  RiuiHell  V.  Smith  (Eng.)  (1848), 
12  g.  B.  217;  17  L.  J.  Q.  li.  22.-); 
12  Jur.  723.  The  singiiiK  of  a 
song  at  a  piano  although  without 
scenery  or  co.stunic  wa.s  held  to 
be  a  "dramatic  jiieco." 

It  was  also  held  tiiat  the  hall 
in  which  the  song  was  sung  was  a 
place  of  dramatic  entertainment. 
Under  this  decision  semble  that 
any  place  where  a  dramatic  piece 
is  performed  is  a  place  of  dramatic 

See  CUirk  v.  Bishop  (Eng.) 
(lS72),2oL.  T.  908. 

»  Day  V.  Simpson  (Eng.)  (1865), 
18  C.  B.  X.  S.  680.  A  play  in 
which  hut  two  persons  apjx'ar  on 
the  stage  and  the  reflection  of 
other  pei-sons  is  thrown  uiK)n  a 
mirror  in  back  of  the  stage  in 
such  a  manner  as  to  deceive  the 
audience  in  believing  them  to 
actually  ap|K?ar  is  an  "enter- 
tainment of  the  stage"  and  the 
owner  of  the  house,  who  had  pro- 

cured no  license  for  the  .same,  was 
held  guilty. 

'"  Weislblall  v.  Bingham  (1908), 
58  Misc.  (X.  Y.)  328;  109  X.  Y. 
Supp.  545.  Plaintiff  operated 
an  ice-cream  salocjn  and  to  at- 
tract customers  gave  moving 
picture  exhibitions.  Xo  admis- 
sion fee  was  chargetl.  Held  that 
although  no  admi.ssion  fee  was 
charged  it  was  a  public  perform- 
ance, a  "common  show"  within 
the  contemplation  of  the  statute 
and  an  illegal  public  jxirformance 
unless  the  license  issued  to  "com- 
mon shows"  was  secured. 

To  the  same  effect  see:  Econo- 
mopoulos  V.  Bingham  (1907),  109 
X.  Y.  Supp.  728. 

"I  do  not  think  the  charging 
o(  an  admission  fee  or  the  fail- 
ure to  charge  a  fee  changes  the 
situation:  but  if  it  lias  any  l)ear- 
ing,  the  affidavits  .sliow  that 
the  plaintiff  collects  admission 
by  an  extra  charge  on  soda 
water  and  the  like  .sold  to  |K'ople 
who  arc  jX'nnittetl  to  view  the  ex- 
liibition  and  listen  to  the  music." 


fitted  up  with  a  vaudeville  stage, ^^  a  circus/-  an  opera/^ 
horse-racing/'*  a  medical  museum/^  a  booth/^  a  bowling 
alley/'  and  an  aquarium. ^^ 

is  distinguished  from  the  spoken 
drama,  but  the  fundamental  and 
really  essential  element  of  both 
is  action." 

^*  Webber  v.  Chicago  (1892), 
50  111.  App.  110.  "There  is  no 
more  uncertainty  as  to  horse 
racing  in  Garfield  Park  being  an 
exhibition  within  an  enclosure 
than  as  to  seUing  whiskey  in  a 
bar  room  being  such  a  business 
as  requires  a  dram  shop  license." 

^^  People  V.  Kennedy  (1913), 
141  N.  W.  (Mich.)  887. 

J6  Fredericks  v.  Payne  (Eng.) 
(1862) ,  1  H.  and  C.  584.  A  booth 
wliich  has  been  erected  tempo- 
rarily is  a  "place"  within  the 
meaning  of  Section  Eleven  of  the 
Theatres  Act  of  1843.  [See  Tarling 
V.  Fredericks  (Eng.)  (lcS73),  21 
W.  R.  785  for  that  section.] 

See  also:  li>u'<scll  v.  Smith  (Eng.) 
(1848),  12  Q.  B.  217;  17  L.  J.  Q. 
B.  225;  12  Jur.  723;  Clark  v. 
Bishop  (iMig.)  (1S72),25  L.  T.908. 

"  Johnson  v.  Ilnmphren  Pop- 
Corn  Co.  (1902),  24  Ohio  C\r.  Ct. 
135.  "Places  of  accommodation 
and  anuisemeiit  "  include  a  bowl- 

See  also:  Herbert  v.  Shanley, 
242  U.  S.  591;  37  Sup.  Ct.  232. 

"  Commonwealth  v.  Donnelly 
(1912),  51  Pa.  Super.  Ct.  61. 
Where  the  building  is  fitted  up 
with  a  stage  and  other  accesso- 
ries for  theatrical  productions, 
and  where  moving  picture  exhi- 
bitions are  alternated  with  per- 
formances of  artists  and  vocal 
entertainment,  the  theatre  is 
subject  to  the  tax  required  of 
theatrical   entertainments. 

''- State  V.  Morris  (1910),  76 
Atl.  (Del.)  479.  Under  a  statute 
providing  that  no  person  shall 
be  engaged  in  exhibiting  circuses 
and  further  that  all  Ijuildings 
wherein  "theatrical"  perform- 
ances were  given  shall  be  deemed 
a  circus  within  the  meaning  of  the 
statute  it  was  hold  that  tlie  giving 
of  motion  picture  exhiljitions  con- 
stituted a  theatrical  performance. 

"Be«  V.  Mahn  (1888),  121 
Pa.  St.  225;  15  Atl.  523.  "The 
f)IX'ra  is  essentially  and  in  every 
point  of  view  a  dramatic  com- 
l)()sition  and  its  representations 
a  dramatic  exhibition.  ...  It 
may  bo  conceded  that  music  is 
in  some  sense  an  (wsoiitial  elemont 
in  the  o|X!ra;  in  thi.s  respect  it 


'"  Wartier  v.  Brighton  A(iiuiriuni 
(iMig.)    (1875),    L.    R.    10   Exch. 

WHAT    IS    "MOTION    IMCTrUK,       KTC 


On  the  otlior  haiul,  u  cabaret  "was  held  not  to  he  an 
exhibition.''-'  In  view  of  the  decision  of  the  United  States 
Supreme  Court  in  Herbert  v.  Shanley  -"  holding  that  the 
public  performances  of  songs  in  cabarets  and  hotels  are 
RJvon   for   ''profit,"   the  Martin   case  will   prol)ably   not 

291;  Tenij  v.  Jiriglitoit  A(iiuiriuin 

(EiiR.)  (i.s7-)),L.  \{.  \oiin.:m. 

On  the  <iucs(ion  whether  the 
proprietor  of  a  ><katinq  rink  xchcrc 
music  is  pUvfcil  is  liable  if  he  doe.f 
rwl  hare  a  liccn~^e,  sec:  Reg  v. 
Titcker  (Kng.)  (1S77),  L.  R.  2 
Q.  B.  D.  417. 

Sec  also:  People  \  .  King  (ISSfi), 
42  Hun  (X.  Y.),  ISO;  alTM  110  X. 
Y.  41S;  IS  N.  E.  245. 

See  also  a.?  to  whether  skating  is 
dancing,  ami  whether  the  public 
nrnst  adunlhj  participate.  Marks 
V.  lien  jam  in  (Kng.)  (1H,39),  5 
M.  &  W.  r)()5. 

^^  People  V.  Martin  (1912),  137 
N.  Y.  Supp.  077.  A  "oaharot," 
ronsistinjf  of  (lancing  and  sinp;inp;, 
arconipaniod  l)y  inlisic  from  an 
orchestra,  was  held  not  to  he  a 
"public  exhibition"  witliin  th(; 
eontemplation  of  a  statute  niakinf? 
it  a  misdemeanor  to  ronduet  a 
pul)lie  exhiliition  without  a  li- 
eense,  ui)on  the  Kround  tliat  the 
entertainment  constituted  a  gra- 
tuitous contribution  by  the  man- 
agement, no  admission  having; 
been  charged. 

The  court  then  cites  the  fol- 
lowing cjuscs  in  supjxjrt  of  this 
projxjsition :  Mayor  etc.  of  New 
York  City  v.  Eden  Muaee  (1886), 
102  N.  Y.  593;  8  N.  E.  40;  People 
V.  Campbell  (HKX)),  51  A.  D.  (X. 
Y.)  565;  65  X.  Y.  Supp.  114; 
People  V.  Royal  (1898),  23  A.  D. 
(X.  Y.)  258;  48  X.  Y.  Supp.  742; 
Society  V.  NeuJibach  (1883),  16 
Wkly.  Dig.  (X.  Y.)  349;  Matter  of 
Allen  (1901),  34  Misc.  (X.  Y.) 
698;  70  X.  Y.  Supp.  1017. 

See  People  v.  Wacke  (1912), 
77  (X.  Y.)  196;  137  N.  Y. 
Supp.  652  where  motion  pictures 
were  shown  in  a  hotel  and  People 
V.  Keller  (1916),  96  Misc.  (N.  Y.) 
32S;  where  a  cabaret  jx^rform- 
ance  wa.s  given. 

See  also:  Brcarley  v.  Morley 
(Eng.)  (1899),  2  Q.  B.  121;  where 
a  public  house  was  held  not  to 
retiuire  a  license  where  the  piano 
was  played  by  guests. 

^Herbert  v.  Shanley  (1917), 
242  U.  S.  591;  37  Sup.  Ct.  232; 
Church  V.  milimd  (1917),  242 
U.  S.  591;37Sup.  C't.232. 



stand.'^  A  motion  picture  theatre  having  no  stage,  was 
likewise  held  exempt  from  obtaining  a  license;  "  so  too, 
a  saloon  having  a  piano  in  a  balcony,-^  exhibitions  given 
to    aid    the   sale   of    a   book,-^    a   private    subscription 

21  See  in  this  connection:  Greg- 
ory V.  Tavernor  (Eng.)  (1833),  6 
C.  &  P.  280;  Hall  v.  Green  (Eng.) 
(1853),  9  Exch.  247;  Quaglieni  v. 
Matthews  (Eng.)  (1865),  6  B.  & 
S.  474;  Sijers  v.  Conquest  (Eng.) 
(1873),  37  J.  P.  342;  Fay  v.  Big- 
nell  (Eng.)  (1883),  Cab.  &  El.  112. 

"  Commonwealth  v.  Spiers 
(1912),  51  Pa.  Super.  Ct.  59.  A 
moving  picture  theatre  cannot 
be  taxed  as  a  theatrical  or  oper- 
atic entertainment  where  it  ap- 
pears that  the  place  is  not 
equipped  with  any  stage  or  facil- 
ities for  vaudeville,  and  the 
entertainment  consists  only  of 
moving  pictures  and  illustrated 

But  where  the  moving  picture 
exhibitions  are  alternated  with 
performances  by  artists  and  the 
building  is  fitted  up  with  a  stage 
and  other  theatrical  accessories 
the  building  comes  under  tlie 
Act  providing  for  the-  licensing 
of  theatres  and  payment  of  tax 
rerjuired.  Commonwealth  v.  Don- 
elbj  (1912),  51  Pa.  Super.  Ct.  61. 

■"  I'copk  V.  Campbdl  (I9()0), 
51  A.  D.  (N.  Y.)  565;  65  N.  Y. 

Supp.  114.  Defendant  was  the 
proprietor  of  a  liquor  saloon  and 
had  paid  the  tax  which  author- 
ized him  to  sell  liquor,  but  had 
no  concert  license.  On  a  balcony 
was  a  piano  which  was  played 
during  the  evening.  Held  that 
this  did  not  constitute  a  theatri- 
cal performance. 

Brearley  v.  Morley  (Eng.) 
(1899),  2  Q.  B.  121.  A  music 
license  was  not  required  by  a 
licensed  victualler  who  kept  a 
piano  in  his  smoking  room  for 
his  customers  to  play  upon. 

^'People  V.  Roijni  (1898),  23 
A.  D.  (N.  Y.)  258;  48  N.  Y. 
Supp.  742.  Defendant  leased 
a  store  and  had  an  assistant  ex- 
hibit various  gambling  devices, 
all  being  done  to  induce  the  sale 
of  his  book  on  gambling.  Held 
that  as  the  sale  of  the  Iwok  was 
perfectly  lawful,  he  had  a  right 
to   give  such   exhibitions. 

"As  long  as  he  conducts  such 
a  business,  using  his  exhibitions, 
illustrations  and  explanations  to 
accomplish  tiiat  end,  we  think  he 
offends  no  law  and  does  not 
violate  this  ordinance." 

WHAT    IS    "MO'l'ION    i'lCTrUE,       1:T< 


dance,-''  where  music  and  dancinp  were  a  secondary  fea- 
ture,-'^ an  amateur  dranuitic  ix-rfonnance  -"  and  public  con- 
certs given  by  a  music  school.-**  An  exhibition  of  actors 
and  motion  pictures  did  not  recjuire  a  motion  picture  li- 

"/M/.s-  V.  linnjhiU  (Eiij?.) 
(1788),  2  Ksp.  722.  Where  :i 
daiioiiiK  master  invited  jx-ople  to 
his  house  for  diuices  by  subscri|>- 
tion.  11  lid  that  as  the  public 
were  not  admitted  indiscrimi- 
nately, no  dance  license  was  re- 

See  also:  Marks  v.  Benjamin 
(Eng.)  (1&39),5M.  &  W.  565. 

But  see  Archer  v.  Willingrice 
(Eng.)  (1802), 4  Esp.  185.  Where 
though  the  admi.ssion  fee  for  the 
dancing  was  paid  to  one  who 
taught  the  dance.s  and  not  to  the 
proprietor,  he  was  recjuired  never- 
theless to  obtain  a 

See  also:  Shult  v.  Lewis  (Eng.) 
(1804),  5  E.sp.  128;  Gregory  v. 
Tujfs  (Eng.)  (18:33),  6  C.  &  P. 
271;  (hrgonj  v.  Tavernnr  (Eng.) 
(1833),  or.  k  P.  280. 

^  Giiaglieni  v.  Matlheivs  (Eng.) , 
.34  L.  J.  M.  C.  116.  Where  the 
music  and  dancing  are  not  tlie 
chief  business  of  the  house  but 
merely  a  .secondary  feature,  a 
license  will  not  be  required. 

Hut  see  Ilnll  v.  Green  (Eng.) 
(18.-)3),  0  Ex.  247. 

^Oellers  v.  Horn  (1807),  3  Pa. 
Sup.     Ct.     537.       Performances 

given  by  amateurs  by  an  organi- 
zation of  university  undergradu- 
ates, are  not  theatrical  iM'rform- 
ances  within  the  purview  of  the 
statute,  and  no  license  need  be 

Duck  v.  Bates  (Eng.)  (1884), 
13  Q.  B.  D.  843.  A  ix-rformance 
given  by  an  amateur  ilramatic 
society  in  a  hospital,  admis- 
sion to  whicii  wa.s  by  free  ticket 
issued  to  friends  of  the  jx'r- 
formers,  wa.s  held  not  to  be  a 
public   jx;rformance. 

-'*  Mark  ham  v.  Southern  Con- 
ser valor  1/  of  Mn.sic  (1902),  130 
N.  (\  276;  41  8.  E.  531.  A  school 
for  musical  instruction  owned  a 
hall  wherein  as  an  incident  of  its 
instruction,  it  gave  concerts. 
Distinguished  si)ecialists  were  con- 
tracted with  to  give  performances 
to  which  the  pupils  and  general 
public  were  admit tetl  ui)on  the 
|)aynient  of  an  admission  fee. 
The  concerts  were  run  at  a  lo.<s, 
the  purix).se  of  selling  tickets 
of  admission  being  solely  t*) 
rcMluce  iti  part  the  loss  sustaiiunl 
by  tlie  institution.  Held  that  the 
school  was  not  liable  for  an  opera 
house  ta.\. 



cense, ^^  and  a  license  given  for  musical  concerts  or  dances 

did  not  cover  or  authorize  the  license  to  give  stage  plays.  ^° 

A    theatre    is    an    institution    sui    generis.       It    is 

not    a     nuisance,^^     nor    a     bawdy    house,^-     nor    a 

^^  Boisseau  v.  Scola  Amiise. 
Co.  (Can.)  (1913),  22  Can.  Cr. 
Cas.  31;  Statute  3  Geo.  V.  (Que.), 
ch.  36  (R.  S,  Q.  1301d)  (1913), 
construed.  Held  that  a  theatre 
at  which  a  number  of  actors  ap- 
peared was  not  subject  to  the 
provincial  tax  placed  upon  mov- 
ing picture  halls  although  the 
exhibition  of  moving  pictures 
constituted  almost  half  of  the 
f  30  Lemj  V.  Yates  (Eng.)  .(1838) ,  8 
A.  &  E.  129;  3  Nev.  &  P.  (Q.  B.) 

See  generally  the  following  Eng- 
lish cases:  Fredericks  v.  Howie 
(1862),  1  H.  &  C.  381;  Shelley  v. 
Bethell  (1883),  12  Q.  B.  D.  11; 
Marks  v.  Benjamin  (1839),  5  M. 
&  W.  565;  R.  v.  Strugnell  (1865), 
L.  R.  1  Q.  B.  93;  Day  v.  Simpson 
(1865),  18  C.  B.  (N.  S.)  680;  Cal- 
crnfl  v.  West  (1845),  2  Jo.  &  Lat. 
123;  Gregory  v.  TaJTs  (1833),  6 
C.  &  P.  271 ;  Bellis  v.  Bealc  ( 1797) , 
2  Esp.  592;  Rmjal  Albert  Hall  v. 
London  Council  (1911 ) ,  27  T.  L.  R. 

"  ('ity  of  fmlinnapolis  v.  Miller 
(1907),   168   Ind.   2X5;  SO   X.   E. 

626;  City  of  Chicago  v.  Weber 
(1910),  248  111.  304;  92  N.  E.  859; 
Ex  parte  Whitwell  (1893),  98  Cal. 
73;  32  Pac.  870;  Barber  v.  Penley 
(Eng.)  (1893),  2  Ch.  447;  Bellamy 
V.  Wells  (Eng.)  (1890),  63  L.  T. 
N.  S.  635;  1  Hawkins  P.  C.  (8th 
Ed.)  693. 

For  detailed  discussion  of  this 
subject  see  Section  80. 

'^Ex  Parte  Bell  (1893),  32 
Tex.  Crim.  App.  308.  The  City 
charter  of  Houston  authorized 
the  City  to  pass  ordinances 
prohibiting  and  punishing  keep- 
ers and  inmates  of  bawdy  houses 
and  variety  shows.  In  pursuance 
thereof  the  city  passed  an  ordi- 
nance declaring  that  any  variety 
theatre  or  show  where  there  was 
music,  dancing  or  singing  and 
where  intoxicating  liquors  were 
sold  to  the  patrons,  should  be 
regarded  as  a  bawdy  house. 
Ordinance  hold  invalid. 

But  sec:  R.  v.  Wolfe  (Eng.) 
(1849),  13  J.  P.  428;  Green  v. 
Botheroyd  (I'lng.)  (1828),  3  C.  <fe 
P.  471.  Under  the  Di.sorderly 
Houses  Act  of  1751,  (25  Geo. 
2,  ch.  36)  s.  2,  :i  music  or  dance 



dwcllinR-house,"  nor  :i   pUico  where  valuable  goods  arc 

It  has  also  been  held  that  the  tonii  "theatre"  in  a 
statute  with  respect  to  the  securing  of  licenses  for  the 
giving  of  theatrical  performances,  referred  not  to  the 
building  but  the  performance.^'' 

Section  106.— Necessity  for  license. 

It  is  well  settled  that  statutes  reciuiring  the  securing  of 
a  license  as  a  condition  to  build  or  operate  a  theatre, 
motion  picture  exhibition  or  other  form  of  public  enter- 
tainment are  constitutional.^^    And  the  statute  may  im- 

luill  wliicli  (lid  not  obtain  :i  li- 
cense was  considered  a  disorderly 

See  also:  Patrick  v.  Wood  (Eng.) 
(190.')),  4  Adam,  648. 

^^PnuUon  V.  Keith  (1901), 
2.3  R.  I.  104;  49  Atl.  O.'}.'). 

"Let!  V.  Slate  (1876),  56  CJa. 
478.  "The  word  theatre  does 
not,  ex  vi  termini  imiwrt  that 
it  is  a  place  where  valuable 
goods  are  stored."  The  court 
then  held  that  an  indictment 
which  did  not  allege  that  valu- 
able goods  were  contained  therein 
was  bad. 

»» Comnionioealth  v.  Kcelcr 
(1850),  3  Pa.  Dist.  1.5S. 

'"  Cotnmonircnlth  w  Mc<lnnn 
(1913), 'Ji:i  Mass.  213;  KM)  X.  K. 
355.     I'pliolds  the  statutes  regu- 

lating tlie  licensing  of  motion- 
picture  theatres. 

"The  Liberty  of  the  Press" 
does  not  apply  to  the  oral  pres- 
entation of  a  play  in  a  theatre. 

Laurelle  v.  kiush  (1912),  17 
Cal.  App.  409;  119  Pac.  9.53. 
Upholds  the  legality  of  an  or- 
dinance regulating  the  licensing 
of    motion-picture    theatres. 

Manmt  v.  Stale  (1SS7),  45 
Ohio  St.  6;J;  12  X.  !•:.  463.  The 
state  has  the  right  to  regulate 
private  and  require 
their  licensing. 

State  V.  ScaJlTer  (1905),  95 
Minn.  311;  104  N.  W.  139. 

Wallick  V.  StKiety  (1876),  67 
X.  Y.  23.  Plaintiff  suwl  to  re- 
strain the  defendant  from  bring- 
ing   an    action    against    him    to 



pose  penalties  for  the  giving 
obtaining  such  hcense.^' 

recover  penalties  and  close  his 
theatre  because  he,  plaintiff,  had 
not  secured  a  license  as  required 
by  law.  Plaintiff  contended  that 
such    law   was    unconstitutional. 

Held  that  he  could  not  maintain 
an  action  of  this  kind. 

See  also:  Liquor  Tax  cases 
(1866),  5  Wall.  462. 

On  the  right  to  regulate  dance 
halls  and  the  form  such  regulation 
may  take  see  Mehlos  v.  Citij  of 
Milwaukee  (1914),  156  Wis.  591; 
148  N.  W.  882,  and  cases  therein 
cited.  State  v.  Rosenfield  (1910), 
111  Minn.  301;  126  N.  W.  1068; 
People  ex  rel.  Ritter  v.  Wallace 
(1914),  160  A.  D.  (N.  Y.)  787; 
145  N.  Y.  Supp.  1041. 

Two  licenses  for  the  same  act 
viay  he  required.  See:  Common- 
wealth V.  McGann  (1913),  213 
Mass.  213;  100  N.  E.  355.  It 
was  held  that  a  statute  was  valid 
which  required  one  license  issued 
by  the  Chief  of  Police  for  the 
safety  of  tlic  public,  and  one 
license  issued  by  the  Mayor  to 
protect  the  morals  of  the  pul)li('. 
The  business  may  be  permitted 
or  licensed  in  pnrt  and  j)rohibitfHl 
in  part. 

^'  ('(ttnm(»nrc(iU}i  v.  Tin'Irht  II 
(1849),  58  74.     Defendant 

of  performances  without  first 

was  found  guilty  of  a  crime  under 
the  statute,  for  promoting  and 
setting  up  a  theatrical  exhibition 
without  first  securing  a  license 
as  required. 

Tarling  v.  Fredericks  (Eng.) 
(1873),  21  W.  R.  785.  Under 
Section  11  of  the  Theatres  Act 
of  1843  it  is  provided:  "And  be 
it  enacted  that  everj^  person  who 
for  hire  sliall  act  or  present  or 
cause,  permit  or  suffer  to  be 
acted  or  presented  any  part  in 
any  stage-play,  in  any  place  not 
being  a  patent  theatre,  or  duly 
licensed  as  a  theatre  shall  for- 
feit such  sum  as  shall  be  awarded 
by  the  court  in  which,  or  the 
justices  by  whom,  he  shall  be 
convicted,  not  exceeding  ten 
pounds  for  every  day  on  which 
he  shall  so  offend." 

Mr.  Justice  Blackburn  said 
tliat  this  section  was  enacted 
for  the  purpose  of  preventing 
anyone  from  acting  stage  plays 
for  hire  anywhere  where  there 
was    no    license. 

On  the  qiu-stion  whether  a  munic- 
ipal corporation  may  he  estopped 
from  maintaining  an  action  for  a 
jxnalti/  for  giving  theatrical  ex- 
hil)ilions  wilhoNl  a  licence  where  it 
has  retained  moneys  paid  to  it  sub- 

NECERSITV    lOIt    I.irENSE  '.V\7 

Tho  question  has  occasionally  arisen  whether  a  par- 
ticular organization  was  re(iuired  to  secure  a  license. 

A  charter  granted  to  a  group  of  men,  under  which  the 
corporation  was  given  the  riglit  (o  give  pui)li('  j)erforni- 
ances  of  stage  plays  in  its  building  did  not  relieve  the 
cor])oration  of  its  obligation  to  obtain  a  license  before 
giving  such  performances. ^'^ 

In  like  manner  it  has  been  held  that  a  charital)le  or- 
ganization was  obligated  to  obtain  a  license  and  pay  the 
required  tax  unless  specifically  exempted  by  statute;  ^^ 
and  generally  it  may  be  said  that  one  vested  with  the 
licensing  i:)t)wer  may  not  except  a  s]>ecial  i:)erson  or  organ- 
ization from  either  obtaining  a  license  or  paying  the  re- 
quired tax,  unless  the  statute  specifically  provides  for 
such  exemption. 

The  license  itself  need  not  be  in  writing.^" 

seqtiently    «.s    a    license   fee,    sec  Shelley  w.  Bethetl  (Eng.)  (ISS^l), 

Mnhnnoy  City  v.  Ilersker  (1911),  12  Q.   B.   D.    11.     A  defendant 

231  Pa.  :n\);  SO  Atl.  5.39.  who  hiid  a  private  house  fitted 

^'^  Royal  Alhcrt  Hall  v.  London.  up  xs  a  private  theatre  turntH.1 
Co.  Council  (Eng.)  (1911),  104  it  over  to  another.  The  latter 
L.  T.  894;  7.5  J.  P.  337;  9  L.  CJ.  R.  advertised  performanees  therein 
620;  27  T.  L.  R.  362.  Altliounh  lor  the  benefit  of  a  school  for 
the  corporation  of  Albert  Hall  has  Dramatic  Art.  Admission  \v:is 
full  powers  under  its  charter  by  ticket  which  cost  i'l  Is. 
to  give  public  performances  of  Held  that  inasmucli  a.s  the 
staj^e  play.s  in  its  buildings,  such  owner  of  the  house  had  not  pro- 
powers  are  not  letters  patent  cured  a  license  he  was  guilty, 
to  give  stage  plays,  and  the  cor-  irrcs|icctive  of  the  fact  that  tiie 
poration  must  ol)tain  a  theatre  performance  wa.s  for  charity, 
license.  construing   Section   Two   of   the 

'» City    of   Mohih'    V.    Kicrmn  Theatres  Act  of  1S43. 

(1911),  54  So.  (Ala.)  102.  *^CUy    of   Boslon    v.    Schaffer 



There  is  some  conflict  as  to  whether  a  hcense  is  required 
for  an  entertainment  for  which  no  direct  admission  fee 
is  charged.  In  New  York  a  cabaret  was  held  exempted 
from  procuring  a  Hcense.  ^^  In  England,  however,  the  con- 
trary seems  to  be  the  rule."-  And  Herbert  v.  Shanley,^^ 
decided  by  the  United  States  Supreme  Court,  subsequent 
to  the  New  York  decision  above  mentioned,  by  holding 
that  a  performance  given  at  a  restaurant  to  which  no 
direct  admission  fee  was  charged,  was  a  public  perform- 
ance for  profit,  has  made  the  English  rule,  the  American 
doctrine  in  this  respect. 

(1830),  9  Pick.  (Mass.)  415.  A 
license  exacted  by  the  mayor  and 
aldermen  need  not  be  in  writing. 

"No  formal  written  license 
was  given  to  the  defendants, 
but  that  is  not  material;  for  there 
was  a  vote  of  the  city  that  the 
hcense  to  the  theatre  should  be 
renewed,  on  the  pro[)rictors  giv- 
ing bond  and  paying  .11000 
a  year,  and  the  defendants  have 
proceeded   as   under   a  license." 

''People  V.  MarUn  (1912),  137 
N.  Y.  Supp.  677;  People  v.  Keller 
(1916),  96  Misc.  (N.  Y.)  92; 
161  N.  Y.  Supp.  132.  But  .see: 
Weislblatt  v.  liingimm  (190S), 
FiH  Misc.  (N.  Y.)  32S;  109  N.  Y. 
Supp.  .54.');  Economopoulofi  v. 
liinijlmm  (1907),  109  N.  Y.  Supp. 

*"■  Farrulalr  v.  liniiihriilqv  (Kng.) 
(1S9S),  42  Sol.  Jo.  192;  Sarpu  v. 

Holland  (Eng.)  (1908),  99  L.  T. 
317;  WallY.  Tayler  (Eng.)  (1883), 
52  L.  J.  Q.  B.  558;  Gregonj  v. 
Tuffs  (Eng.)  (1833),  6  C.  &  P. 
271;  Archer  v.  Willingrice  (Eng.) 
(1802),  4  Esp.  186;  Trailing  v. 
Messenger  (Eng.)  (1867),  31  J.  P. 
423;  WiUiam.s  v.  Wright  (Eng.) 
(1897),  13  T.  L.  R.  551. 

"Herbert  v.  Shanlcy  (1917), 
242  U.  S.  591;  37  Sup.  Ct.  232. 

See  generally  as  to  defendant's 
scienter  and  the  manner  of  use  of 
the  premises  the  folhnving  Eiighsh 
cases:  Shelley  v.  Bcthcll  (l^ig.) 
(1883),  12  Q.  B.  D.  11;  Marks 
V.  Benjamin  (Eng.)  (1839),  5 
M.  &  W.  565;  Gregory  v.  Tuffs 
(Eng.)  (18.33),  6  C.  &  P.  271; 
Syers  v.  Conquest  (Eng.)  (1873), 
37  J.  P.  342;  R.  v.  Rosenthal  (Eng.) 
(1805),  .30  J.  P.  \0\;  R.  v.  Slriiy- 
nell  (Eng.)  (1865),  L.  R.  1  (i.  B. 


Section  107. — Power  to  license  discretionary  Revoca- 

The  power  to  license,  by  the  great  weight  of  authority, 
has  been  held  to  be  purely  diseretionary  in  the  ofhcial 
or  body  in  whom  it  is  vested,  even  though  such  power 
may  be  granted  or  revoked  "at  their  pleasure."  "  The 
courts  will  not  interfere  in  the  exercise  of  that  discretion, 
nor  substitute  their  judgment  in  place  of  the  hcensing 
body,  unless  that  discretion  is  abused.''' 

In  a  leading  case  the  New  York  Appellate  Division 
held  that  "The  cjuestion  which  we  have  here  presented 
therefore  is  whether  the  refusal  of  the  commissioner  to 
gi-ant  the  Hcense  is  a  'judicial  act.'  .  .  .  But  with  that 
determination  when  reached  the  court  has  no  right  to 
interfere.  In  other  words,  the  granting  of  licenses  is  re- 
ferred to  the  judgment  and  discretion  of  the  connnissioner, 
and  there  is  no  authority  in  any  particular  instance  for 

93;  Clarke  v.  Scnrlc  (Eiik-)  (179:^), 
1  Esp.  25;  Ikllus  v.  IkcUe  (En^.) 
(1797),  2  Esp.  592;  Rial  v.  Wil- 
son (EnR.)  (1895),  1  Q.  B.  315; 
}I  off  man  v.  Boml  (Eng.)  (1875), 
32  L.  T.  N.  S.  775;  Brown  v. 
Nugent  (Eng.)  (1872),  L.  R.  7 
Q.  B.  588;  Garrelt  v.  Messenga' 
(Eng.)  (1S07),  L.  R.  2  C.  &  P. 
5S;{;  liiyuui  v.  Uannwj  (Eng.) 
(1891),  2  Q.  B.  709. 

♦*  Commonu'callh  v.  Mdlann 
(1913),  213  Mass.  213;  100  N.  E. 

*^ People    ex   rel.   Cuniiaktij    v. 

Wurster  (1897),  14  A.  U.  (X.  Y.) 
5.">0;  43  N.  Y.  8upp.  1088.  The 
|X)Wor  granted  to  a  mayor  to 
i.-;.><ue  theatrical  i.s  dis- 
cretionary' and  when  not  abused, 
will  not  1)0  interfered  with  l>y  the 

See  also  cases  cited  in  Section 

/i*.  V.  Anhton,  ex  parte  Walker 
(1915)  (Eng.),  113  L.  T.  690;  79 
J.  P.  444.  Discu-sses  the  proposi- 
tion as  to  who  is  entitled  to  no- 
tice of  apix^al  from  the  refusal  to 
grant  a  music  liceu.-<e. 



substituting  for  the  conclusion  which  he  may  reach  that 
of  the  court  ...  our  conclusion  being  that  the  power 
vested  in  the  police  commissioner  is  purely  discretionary 
and  one  not  reviewable  by  the  courts."  ^^ 

The  pohce  powers  of  the  state  to  grant  licenses  may  be 
delegated  to  subordinate  boards  and  commissions;  ^^  but 
the  delegation  must  be  express,  so  that  school  trustees 
may  not  overstep  their  authority  by  leasing  school  prop- 
erty for  motion  picture  exhibitions.^^ 

«  Matter  of  Armstrong  v.  Mur-      Atl.    (Md.)    227.     An   ordinance 

p%(1901),65A.  D.  (X.  Y.)  126; 
157  N.  Y.  Supp.  534. 

See  also:  Matter  of  Whitten 
(1913),152A.D.  (N.Y.)506;137 
N.  Y.  Supp.  360;  Matter  of  Simoiis 
V.  McGuire  (1912),  204  N.  Y. 
253;  97  N.  E.  526;  People  ex  rel. 
Schau  V.  McWilliams  (1906), 
185  N.  Y.  92;  77  N.  E.  785; 
People  ex  rel.  McNulty  v.  Max- 
well (1908),  123  A.  D.  (N.  Y.) 
591;  108  N.  Y.  Supp.  49;  People 
ex  rel.  Park  Circle  Amxise.  Co.  v. 
Board  of  Police  (1901),  36  Misc. 
(X.  Y.)  89;  72  X.  Y.  Supp.  583; 
People  ex  rel.  Bonfiglio  v.  Bing- 
ham (1910),  67  Misc.  (X.  Y.) 
539;  124  X.  Y.  Supp.  751;  People 
ex  rel.  Schivab  v.  Graiit  (1891), 
126  X.  Y.  473;  27  X.  E.  964. 

« McKenzie  v.  McClellan 
(1909),  62  Misc.  (X.  Y.),  342;  116 
X.  Y.  Supp.  645.  State  v.  Lodcn 
(1912),  117Md.  373;  S3  Atl.  564. 

Brown    v.    Stubba    (1916),    97 

passed  by  the  City  of  Baltimore 
requiring  an  applicant  seeking 
to  secure  a  license  for  the  erec- 
tion of  a  moving  picture  theatre, 
to  first  obtain  a  permit  from  the 
mayor  and  city  council  was  held 
valid  even  though  the  ordinance 
did  not  prescribe  any  rules  or 
regulations  limiting  the  exercise 
of  the  discretion  of  the  mayor 
and  city  council. 

See  also:  Krics  v.  Dick  (1914), 
141  Pac.  (Col.)  505.  Where  by 
statute  a  town  clerk  is  the  person 
designated  to  issue  licenses  for 
motion  picture  exhibitions,  the 
town  clerk  alone  is  the  proper 
party  in  mandanms  proceedings. 
It  is  improper  to  join  tlie  mayor 
and  members  of  the  town  Ijoard. 

*»  Tnuslces  etc.  v.  Lewis  (1912), 
63Fla.  691;57So.  014. 

See  also  Smith  v.  ('iln  of 
Raton  (1893),  104  Pac.  (X.  M.) 

EXTENT    OK    DISCRETION    (Jl     LICENSING    POWEU       '.W)l 

Just  as  they  may  i^raiit,  so  may  the  licensing  jxjwcrs 
revoke  the  license  where  grounds  for  so  doing,  exist.  And 
they  may  do  this  without  holding  any  formal  hearing  or 
giving  any  notice  to  the  licensee.  ''^  Indeed,  in  a  recent 
it  was  held  that  where  the  theatre  was  unsafe  for  use  and 
the  interior  arrangement  was  not  in  compliance  witli  the 
law,  \\w  mayor  was  under  an  express  oljligation  to  so 
revoke  the  license.'" 

Section  108.     Extent  of  discretion  of  licensing  power. 

The  i)ower  of  the  licensing  authorities  to  grant 
is  restricted  in  tliree  respects — first,  by  its  rea.sonable- 
ness,  second,  in  respect  of  the  use  of  the  licensed  premises, 
and  third,  by  the  interest  of  the  puljlic.  Subject  to  these 
restrictions,  there  is  no  fetter  upon  the  power  of  the  li- 
censing authorities.''' 

"  McKctiziex.  McClellan  (1909), 
G2  Misc.  (X.  Y.)  342;  IIG  N.  Y. 
8upp.  G-1.5.  The  mayor  revoked 
tlie  issued  to  the  pUiintifTs 
without  any  notice  or  hearing. 
Held  that  sucli  power  was  vesteil 
in  him. 

Sec  also:  MatUr  of  Hammer- 
skin  (1907),  'il  Misc.  (X.  Y.) 
60();  102  X.  Y.  Supp.  950;  Fox 
Am.  Co.  V.  MeCUllan  (li)09),  02 
Misc.  (X.  Y.)  KK);  114  X.  Y. 
Supp.  594;  I'Jx  parte  S(oU  (Eng.) 
(19K)),  1  K.  n.  7;  W.  X.  302; 
32  T.  L.  K.  S4. 

'^Genesee  Recreation  Co.  \. 
Kilqcrlon  (1910),  172  ,\.  I).  (X.  Y.) 
404;  15S  X.  Y.  Sui)p.  421. 

'•  Theatre  de  Luxe  v.  Gledhill 
(Eng.)  (1915),  2  K.  B.  49;  W.  X. 
10;  84  L.J.  (K.  B.)(>19;  112  L.T. 
519;79J.  P.  238;31T.  L.  R.  138; 
13  L.  (1.   R.  541. 

I  At  h  ridge  v.  Wilaon  (Can.),  8 
A.  L.  R.  178;  8  W.  W.  R.  424. 
Statute  regulating  erection  and 
oi)eration  of  theatres  including 
licensing  control  aiul  sujxTvisioM 
of  use  and  ojx'rations  of  moving 
picture  machines  and  regulations 
of  exhibition,  sale  and  lejusing 
of  films  construed.  The  The;itrcs 
Act,  ch.  25,  1911-12. 

/tx  parte  London  <{•  Prorincial 
EL  Theatres,  Ltd.  (lOng.)  (1915), 
31  T.  L.  R.  329.    County  Coun- 



As  an  illustration  of  the  first  limitation  upon  its  power, 
reference  may  be  had  to  ordinances  imposing  a  specified 
Ucense  fee.  Unless  the  amount  of  the  tax  is  excessive, 
the  courts  will  not  interfere.^- 

A  statute  imposing  a  Ucense  tax  upon  places  of  amuse- 
ment graded  according  to  the  size  of  the  city  wherein 
the  theatre  was  situated,  was  held  vahd;  ^^  so  also,  where 
the  tax  was  upon  a  graded  scale  according  to  the  price  of 
admission  charged. ^^ 

A  mayor  in  whom  was  vested  the  power  to  license  was 
permitted  to  look  behind  an  application  to  ascertain 
whether  its  actual  purpose  was  truly  represented,  and 
if  not  so,  to  refuse  to  issue  a  hcense.^^ 

cils  in  considering  applications 
for  license  under  the  Cinemato- 
graphic Act  of  1909  are  not  con- 
fined to  matters  relating  to  safety 

See  also:  Ex  parte  Harrington 
(Eng.)  (1888),  4  T.  L.  R.  435; 
C.  A. 

"C%  of  Dididh  V.  Marsh 
(1898),  71  Minn.  248;  73  N.  W. 
962.  A  license  fee  of  $125  for 
six  months  was  held  not  to  be 

See  in  this  connection:  The 
King  v,  Dimock  (Can.) ,  30 1).  L.  U. 
217;  26  Can.  Cr.  Cas.  311;  44  N. 
H.  II.  124.  Under  an  Act  which 
imposes  generally  a  license  fee 
of  S50  on  "  public  places  of  amuse- 
ment," motion  pictures  may  not 

be  required  to  pay  $300  as  a 
license  fee. 

See  in  tliis  connection:  Leth- 
bridge  v.  Wihon  (Can.),  8  A.  L.  R. 
178;  8  W.  W.  R.  424.  Held 
that  in  the  absence  of  a  special 
provision  the  licensing  authority 
had  no  right  to  impose  a  license 
fee  on  theatres. 

"  State  V.  O'llara  (1884),  36  La. 
Ann.  93. 

To  the  same  efTect:  State  v. 
Schonhauscn  (1885),  37  La.  Ann. 

"  Metropolis  Theatre  Co.  v. 
City  of  Chicago  (1912),  228  U.  S. 
61;  33  Sup.  Ct.  441. 

"  People  ex  rcl.  (Uimiskey  v. 
Wurstcr  (1897),  14  A.  1).  (N.  Y.) 
556;  43  N.  Y.  Supp.  1088.    The 

EXTENT   OF    DISCRETION'    OF    LICENSING    P0\\T:R      353 

Thoro  arc  uunicrous  iiistaiict's  illustrative  of  the  third 
limitation.  The  question  has  usually  come  up  hi  cases 
where  the  one  vested  with  the  authority  to  Ucense,  has 
either  refused  to  issue  or  threatened  to  revoke  the  license 
of  a  theatre  because  of  the  exliihition  therein  of  a  motion 
picture  which  in  liis  opinion,  is  obscene,  unmoral,  seditious 
or  a])t  to  create  race  prejudice. 

The  comls  have  been  increasingly  prone  to  give  the 
licensing  power  wide  scope  in  the  exercise  of  its  cUscretion, 
until  now  the  broad  rule  followed  by  the  courts  seems  to 
be  that  unless  the  element  of  bad  faith,  cai)ri('iousness  or 
misinformation  is  ai)i)arent,  they  will  not  interfere  with 
the  discretion  exercised. 

"These  statutory  provisions  and  ordinances,  thevahdity 
of  wliich  is  not  and  could  not  well  be  questioned,  nec- 
essarily delegate  to  the  commissioner  authority  to  issue 
and  to  revoke  Ucenses  according  to  his  judgment  and  dis- 
cretion, to  be  exercised,  of  course,  in  good  faith  and  im- 
partially and  conscientiously  according  to  what  he  beheves 

mayor  may  refuse  to  grant  a  mayor  was  justified  in  tlie  con- 
(hoatrifal  license  to  a  dub  when;  elusion  that  a  lieense  for  a  first- 
it  apfK'ars  tliat  only  prize-fight  class  theatre  was  not  appli- 
exlul)iti()iis  arc  coiitcinplatcd.  cable  to  the  j)urj)<ises  for  which 
"It  would  certainly  be  remark-  the  Surf  Atliletic  Club  had  pre- 
able  to  deny  to  the  mayor  to  pared  its  building  and  to  which 
look  i)ehind  an  application  made  it  was  to  \tc  devoted.  And  it 
for  a  license  to  ascertain  wliether  may  be  assumed  that  his  refusal 
its  actual  purjKJse  was  truly  to  grant  the  license  was  fouiuled 
reprcsentetl,  and  if  not  so,  to  upon  the  fact.s  in  that  resjK'ct 
refuse  it.  He  undoubtedly  would  as  they  then  cxiste<l,  and  were 
have  that  power.  He  exercised  rea.sonably  inferable  from  them." 
it   in    the    relator's    case.      The 


to  be  in  the  interest  of  morality  or  decency  or  public 
safety  or  public  welfare.  It  is  not  the  judgment  and. dis- 
cretion of  those  who  are  interested  in  exploiting  a  film 
commercially,  as  is  the  plaintiff,  or  of  citizens  generally, 
or  even  the  courts,  but  that  of  the  commissioner  only 
[itahcs  that  of  the  coiu-t]  that  is  called  into  action.  The 
commissioner,  however,  must  not  abuse  the  discretion 
vested  in  him  by  acting  capriciously  or  arbitrarily  or  on 
false  information  and  without  reasonable  ground  for 
apprehending  that  the  public  moraUty,  or  decency,  or 
safety,  or  welfare  will  be  endangered,  but  the  extent  of 
inquiry  collaterally  by  the  courts  with  respect  to  his 
action  is  whether  there  is  reasonable  ground  upon  which 
such  apprehension  may  honestly  rest  in  the  exercise  of  a 
fair  and  legal  discretion,  and  if  not,  the  court  may  require 
him  to  act  or  enjoin  him  from  acting:  but  if  the  question 
be  doubtful,  and  there  be  room  for  an  honest  difference 
of  opinion,  then  the  matter  must  be  left  to  the  official 
to  whom  the  Legislature  has  delegated  authority,  and 
his  action  in  refusing  to  grant  a  license,  or  in  revoking 
one  granted,  cannot  be  annulled  or  controlled  collaterally 
as  by  mandamus  or  injunction."  '"^ 

'^Message    Plioloplay    Co.    v.  N.  Y.  Supp.    161;   Genesee  Rec- 

IklL    (1917),   New   York   Appel-  realion   Co.    v.    Edgoion    (15)10), 

late  Division;  N.  Y.  Law  Jour-  172  A.  D.  (N.  Y.)  464;  158  N.  Y. 

nal,  July  20th.     Citing:   People  i^upp.i2l;  People  ex  relCumiskey 

ex   ret.  Schwab   v.  (Imnl    (1891),  v.     Wurster    (1897),    14    A.    D. 

126  N.  Y.  473;  27  N.   E.  964;  (N.  Y.)  556;  4:3  N.  Y.  Supp.  1088; 

Matter  of>j  v.  licit  (1916),  liiUcr  v.  Wallace  (1914),  100  A.  I). 

218  N.  Y.  212;  112  N.  K.  747;  (N.   Y.)   787;   145  N.   Y.  Supp. 

People    ex    rel.    Rota    v.    Baker  1041;    People    ex    rel.    Lodes    v. 

(1910),  136  A.  D.  (N.  Y.)  7;  120  Dep'l  of  Health  (1907),  189  N.  Y. 

EXTENT   OJ"    1>I.S(  KETH)\    ol     MCENSING    rOWEU      li.j'> 

This  is  tlu'  laii^iiu^!;('  of  tlic  Appclhitf^  Uivisi(jii  of  New 
York  (First  Dcpartineiitj  with  reference  to  the  hhn  kiKJwn 

A.  I).  (N.  Y.)  'jOd;  N.  V. 
Sui^p.  3G();  (  liecr.  v.  Ed- 
gcrton  (1910),  172  A.  D.  (N.  Y.) 
1()4;  158  N.  Y.  Supp.  421;  ItitUr 
V.  Wallace  (1914),  IGO  A.  I). 
(X.  Y.)  787;  145  N.  Y.  Supp. 

Univer.sal  Film  Mfy.  Co.  v. 
Bell  (1917),  N.  Y.  Law  Journal, 
June  5th,  Grccnbauin,  J.  'In- 
deed it  is  wholly  immaterial 
what  the  court's  opinion  may  he 
as  to  the  wisdom  of  the  conunis- 
si(jner's  action  as  long  as  he  acted 
in  good  faith.  The  court  cannot 
act  as  a  commissioner  of  licenses. 
That  the  ct)mmissioner  did  not 
act  arliitrarily  or  capriciously,  it 
is  hut  fair  to  state  that  the  affi- 
davits submitted  indicate  that  he 
ba.sed  his  opinion  of  the  character 
of  tlie  j)roduction  after  he  had 
tlioroughly  familiarized  iiim.self 
with  its  theme,  the  pictures  and 
(he  words  employed  in  its  prt\s- 
entation  and  considcrwl  tlie  ef- 
fect it  was  likely  to  pnxluce  upon  wiio  witne.'vs  it.  Among 
tl»c  answering  affidavits  a  numIxT 
of  them  are  maile  l)y  persons  of 
high  standing  and  by  rt*i)rcsen- 
tatives  of  civic  societies  to  the 
effect  that  tlie  play  is  contra 
botws  morwf.    Whether  their  opin- 

187;  82  N.  K.  1S7;  I'iexotlo  v. 
Bmrd  of  Kihiailum  (1!>14),  212 
N.  Y.  4();{;  100  N.  1-:.  ;«)7;  MalUr 
of  Fnnikliii  Film  Corponition 
(1917),  253  Pa.  St.  422;  98  Atl. 
62.'i;  Van  Nonlen  y.  Sewer  Com tn'r 
(1904),  «K)  A.  1).  (X.  Y.)  555; 
84  N.  Y.  Sui)p.  445;  Bainbndge 
V.  City  of  Minneapolis  (1915), 
131  Minn.  195;  154  N.  W.  964. 
"For  decisions  in  which  the  same 
rule  is  stated  but  mandamus 
was  issued  see:  I'J.  C.  T.  Club  v. 
Stale  Racing  Comm'n  (1907),  190 
N.  Y.  31;  82  N.  E.  723;  Cosby 
V.  liobin-son  (1910),  141  A.  D. 
(X.  Y.)  050;  120  X.  Y.  Supp.  540. 

"There  is  no  evidence  that  the 
threatened  action  of  the  defend- 
ant is  in  bad  faith,  and  it  must 
therefore!  i)e  presumetl  tliat  he  is 
acting  honestly  in  the  exercise 
of  fair  and  impartial  discretion 
and  judgment.  City  of  Buffalo 
V.  //(■//  (1903),  79  A.  D.  (X.  Y.) 
402;  7!)  X.  Y.  Supp.  449. 

"The  merits  of  the  action 
should  not  be  determined  on 
confhcting  aflidavits,  nor  should 
a  temj)orary  injunction  i.ssuc  in 
sucli  against  the  official 
in  whom  the  law  has  vested  the 
duty  of  acting  in  tlic  premises. 
MaUcr    of    W'hitlen    (1913),    152 



as  ''Birth  Control,"  in  which  case  the  order  of  the  justice 
at  special  term  enjoining  the  commissioner  of  hcenses 
from  in  anywise  interfering  with  the  exhibition  of  the 
picture  was  reversed." 

ions  are  correct  or  not  it  is  not 
necessary  for  the  court  to  pass 
upon,  but  they  are  merely  re- 
ferred to  as  bearing  upon  the 
question  of  whether  or  not  the 
defendant  has  abused  his  dis- 
cretion. Under  the  statute  the 
commissioner  is  to  consider 
whether  the  play  is  'immoral, 
indecent  or  against  the  public 
welfare.'  One  of  the  definitions  of 
the  word  'decency'  found  in  the 
Century  Dictionary  is  'propriety 
of  action,  speech,  dress,  etc' 
What  constitutes  decency,  or,  in 
other  words,  what  is  propriety 
of  action,  must  be  determined 
by  standards  in  vogue  among 
highly  civilized  peoples  and  not 
those  that  maj^  prevail  among 
the  Fiji  or  South  Sea  Islanders. 
Lewd  men  and  women  have  no 
sense  of  decency,  and  what  may 
be  regarded  a.s  decent  by  one 
person  may  not  be  thus  regarded 
by  another.  The  discnition  hon- 
estly exercised  by  the  comniis- 
sioiicr  in  the  discharge  of  his 
duties  iiiMV  not  be  overthrown 
by  the  court  excepting  only  wiien; 
it  may  be  .shown  lli;it  liis  actions 

were  influenced  by  corrupt  or 
dishonest  considerations,  the  bur- 
den of  proving  which  rests  upon 
the  moving  party." 

5^  For  other  cases  where  the 
licensing  power  altevi'pted  to  en- 
join the  exhibition  of  an  obscene 
or  immoral  -picture  see:  Universal 
Film  Manufacturing  Co.  v.  Bell 
(1917),  N.  Y.  Law  Journal, 
Greenbaum,  J.  (The  Hand  that 
Rocks  the  Cradle);  Sociological 
Research  v.  Waldo  (1914),  83 
Misc.  605;  145  N.  Y.  Supp.  492 
(The  Inside  of  the  White  Slave 
Traffic);  Genesee  Recreation  Co. 
v.  Bingham  (1916),  172  A.  D. 
(X.  Y.)  464;  158  N.  Y.  Supp. 
421  (no  title  given  in  decision); 
Block  V.  Citij  of  Chicago  (1909), 
239  111.  251;  87  N.  E.  1011 
(James  Boys  and  Night  Riders); 
Stein  V.  Bell  (1917),  N.  Y.  Law 
Journal,  May  2nd  (The  Awaken- 
ing of  Spring);  Ivan  Film  Pro- 
ductions V.  Bell  (1916),  N.  Y. 
Law  Journal,  December  5  (The 
Sex  Lure). 

For  cases  where  a  production 
<m  the  stage,  u^'th  living  actors  was 
involved     see:     I*coplc    v.     Doris 


A  court  has  refused  to  interfere  where  the  Ucensing 
authority  tlireatened  to  revoke  a  hcense  upon  the  ground 
that  the  proposed  exhibition  of  a  motion  jjicturc  would 
tend  to  cause  l)n\ic]ies  of  neutrality;  ''*  and  in  like  manner 
where  the  moti(jn  picture  was  likely  to  create  race  prej- 

The  courts  also  upheld  a  commissioner  of  licenses  in 
his  refusal  to  grant  a  license,  where  the  owner  of  the 
adjacent  ])rojierty  stored  combustibles/'" 

(1S97),  11  A.  1).  (X.  Y.)  117; 
43  X.  V.  Supp.  ')71;  appeal  dis- 
missed, 153  X.  Y.  67S;  4S  X.  K. 
1100  (A  pantomime  entitled 
"Orange  Blossoms");  Brewer  v. 
Wytiiir  (1913),  103  X.  C.  319; 
79  S.  !•:.  029  (The  Cirl  from 
Rector's);  King  v.  McAttUJfe 
(Can.),  S  Can.  Cr.  Ca.s.  21 
(Hallet  Dancing). 

'■UJfr  I'hoto  Film  V.  Brll 
(191-))',  \K)  Misc.  (N.  Y.)  409; 
154  N.  Y.  Supp.  76;^  Plaintiff 
wa.s  about  to  exhibit  a  motion- 
picture  depicting  .scenes  of  tiie 
Cicrman  War.  Defendant,  Com- 
missioner of  Licenses,  tlireatened 
to  revoke  the  license  of  tlu^ 
theatre  producing  tlie  same,  and 
])hiiiitilT  was  granted  injunction 
on  tlie  groimd  tliat  it  would 
be  imi)ossil)le  for  iiim  to  obtain 
any  relief  otherwise. 

''•U<:(U-lstein  V.  Brll  (1915),  91 
Misc.    (X.   Y.)   620;    155   X.   Y. 

Supp.  590.  The  cf)urt  would  not 
interfere  with  a  commi.s.sioner  (}f 
licenses  where  he  refused  U>  grant 
a  license  iM'rmitting  theexhil)ition 
of  a  photoplay  entitled  "The 
Frank  Ca.-^e"  ba.sed  on  the  inci- 
dents of  the  famous  murder  trial 
in  (!e()rgia. 

Hambridijc,  Jr.  \.  City  of  Min- 
iwapulis  (1915),  131  Minn.  195; 
l.')4  X.  W.  90^1.  Action  wa.s 
brought  to  enjoin  mayor  from  re- 
voking license  of  theatre  wherein 
plaintilT  had  arranged  to  exhil)it 
tlie  film  "The  Birth  of  a  Xation." 
//(/'/  that  mayor  wa.s  not  abusing 
his  discretion  or  exercising  it 

«« Maltcr  of  Ormsby  v.  Bell 
(1916),  21S  X.  Y.  212;  112  X.  K. 
7 17.  Since  tiie  jiower  of  the  coin-  to  grant  a  license  to  a 
motion  picture  theatre  is  dis- 
cretionar>',  it  wa.s  held  that  it 
w;us    not    an   of    liis   dis- 


It  was  also  held  to  be  a  proper  exercise  of  discretion  to 
refuse  a  license  because  of  the  proximity  of  the  building 
wherein  the  motion  pictures  were  contemplated  to  be 
given,  to  a  church  and  school." 

And,  in  England,  the  courts  refused  to  interfere  where 
a  municipahty  refused  a  Hcense  for  a  motion  picture 
theatre,  when  the  applicant  for  the  license  was  a  com- 
pany of  which  the  majority  of  the  stockholders  were  alien 

Attention,  however,  may  be  here  called  to  cases  where 
it  was  held  that  where  there  had  been  full  comphance 
with  the  requirements  of  a  statute  for  the  issuance  of  a 
license  for  a  motion  picture  theatre,  the  apphcant  was 
prima  facie  entitled  to  such  license.®^ 

Section  109. — Right  to  license  on  condition. 

Provisions  contained  in  a  licensing  act  requiring  the 
payment  of  specified  sums,  as  a  condition  precedent  to 
the  issuance  of  a  hcense,  have  been  held  vaUd.''^ 

cretion   to   refuse   a   license   bo-  nor  (1912),  77  Misc.  (X.  Y.)  57G; 

cause  the  owner  of  the  adjacent  137  N.  Y.  Supp.  lOG. 

property  stored  comlMistibles  and  "  R.  v.  London  County  Cotmcil, 

would  lose  liis  permit  if  the  theatre  ex  parte  (Eng.)   (1915),  2  K.  13. 

were  opened.  482;  W.  N.  154;  84  T..  .1.  (K.  H.) 

See  also:  Matter  of  Armstrong  \.  1795;  113  L.  T.  122;  31  T.  L.  R. 

Murphy  (1901) ,  65  A.  D.  (N.  Y.)  329;  70  J.  P.  417. 

123;  157  X.  Y.  Hupp.  534;  City  '^^  Walker  v.   Fulmnan   (1914), 

of  Buffalo  V.   Chndcnyne   (1889),  84  Misc.  (X.  Y.)  118;  140  X.  Y. 

7   X.   Y.   Supp.   501;    afT'd    134  Supp.  519;  Kries  v.  Dick  (1914), 

N.  Y.  103;  31  X.  K.  443;  French  141  Pac.  (O)!.)  505. 

V.  Jonefi  (1900),  191  Mass.  522;  <>*  Higgim    v.    Lacroix    (1912), 

78  X.  E.  118.  119  Minn.  145;  137  X.  W.  417. 

'^^  People  ex  rcl.  Moses  v.  (lay-  A  license  fee  of  .S2(K)  as  a  piere(iui- 



Where  the  licensing  power  is  vested  by  statute  in  a 
political  subdivision  of  the  state,  it  may  insert  and  enforce 
a  stipulation  that  the  theatre  shall  be  kept  open  only 
durinji;  specified  hours.^'" 

site  to  operate  a  motion-picture 
theatre  in  a  villaRo  hold  not  to 
\)e  excessive. 

"The  village  is  presumably 
a  growing  community  now  having 
more  than  one  thousand  inhabi- 
tant*^. These  shows  are  usually 
carried  on  every  day  in  the  week 
with  several  performances  each 
day.  Fifty-five  cents  per  day 
does  not  appeal  to  us  to  be  so 
liigh  that  it  necessarily  results  in 
prohibiting  moving  picture  shows 
from  locating  at  Deer  River." 

Park  V.  Morgan  (1912),  64 
Fla.  414;  60  So.  347.  An  ordi- 
nance imposing  a  license  tax  upon 
theatrical  shows  was  held  valid. 

Baker  v.  Cily  of  Cincinnati 
(1860),  11  Ohio  St.  .534.  A  pro- 
vision in  a  licensing  act  whicii 
exact<'d  the  payment  of  .SG;^.')!) 
from  the  applicant  for  license  held 

To  the  same  effect:  CiUj  of 
Boston  v.  Schajfer  (KS.30),  26 
Mtuss.  415;  Hodges  v.  Mayor 
(1840),  21  Tenn.  61;  State  v. 
D'Hara  (1884),  36  La.  Ann.  93; 
State  v.  Schonhniiser  (188.5),  37 
La.  Aim.  42;  City  of  Diduih  v. 

Marsh  (1898),  71  Minn.  248; 
73  N.  VV.  962;  Metropolis  Theatre 
Co.  V.  City  of  Chicago  (1912), 
228U.  S.  61;.33Sup.  Ct.441. 

People  V.  Coleman  (18.54),  4 
Cal.  46.  For  an  exhaustive  sum- 
mary of  the  right  of  the  state  to 
tax  trades,  professions  and  oc- 

See  in  this  connection:  Orton 
V.  Brown  (1858),  35  Miss.  426. 
Discussing  a  tax  of  S25  a  day  im- 
posed upon  a  circus  the  court 

"Hence  the  law  ta.xes  the  ex- 
hibition as  a  matter  of  public 
policy,  and  thereby  gives  the 
right  to  make  the  exhibitions 
upon  payment  of  the  sum  re- 
(juired.  This,  in  effect,  is  a 
license  to  do  an  act,  and  not  a 
tax  MIX)!!  proix^rty;  and  therefore 
when  the-  sum  requireil  is  paid, 
the  right  is  conferred  without 
further  exaction." 

In  other  words  where  the  owner 
had  paid  his  tax,  he  was  not  re- 
(luiretl  to  pay  an  additional 
county  tax. 

**  People  ex  rel  Kielcy  v.  lA-nt 
(191.5),  166  A.  D.  (X.  Y.)  .5.50; 



The  applicant  for  a  license  may  also  be  required  to 
pledge  himself  not  to  apply  for  a  hquor  Ucense,  as  a  con- 
dition to  the  granting  of  the  theatre  Ucense.^^ 

And  generally,  the  hcensing  power  may  impose  condi- 
tions for  the  grant  of  the  hcense,''^  and  reasonable  Umits 
may  be  placed  upon  the  exercise  of  the  rights  granted 

It  may  not,  however,  impose  a  condition  that  the  theatre 
shall  remain  closed  on  Sunday,  as  that  in  the  language  of 
the  courts  "must  be  deemed  'tyrannical'  and  a  usurpation 
of  power  and  not  'discretionary'  ...  for  the  mayor  thus 
makes  a  Sunday  law  unto  himself  and  seeks  to  impress  it 
upon  the  community  in  hostihty  to  the  general  law  of  the 
state  and  judges  that  of  which  the  legislature  is  the  sole 
judge."  69 

152  N.  Y.  Supp.  18.  "A  license 
may  be  conditionally  granted. 
It  may  be  given  subject  to  cer- 
tain reasonable  hours  of  opening 
and  other  Hmits  upon  its  exercise." 

6"  Queen  v.  County  Council 
(Eng.),  2  Q.  B.  D.  3S6.  The 
County  Council  may  require,  as 
a  condition  to  granting  a  theatre 
license,  that  the  appUcant  pledge; 
himself  not  to  apply  for  a  liquor 

"  R.  V.  YoiLshirc  Covnty  Coun- 
cil (Eng.)  (ISUO),  2  q.  ii.  :iS(i; 
Manchesler  Palace  v.  Manchesler 
Corporation  (Eng.)  (1898),  62 
J.  P.  425;  R.  V.  ShcerncKn  County 
Council  (Eng.)  (1898),  ()2  .1.  P. 
56.},  C.  A. 

And  as  to  procedure  where  li- 
cense is  opposed  see:  Royal  Aqua- 
rium Soc.  V.  Parkinson  (1892), 
1  Q.  B.  431 ,  C.  A;  R.  v.  London  Co. 
Coumil  (Eng.)  (1892),  1  (^  B.  190; 
R.  V.  London  Co.  Council  (Eng.) 
(1894),  71  L.  T.  638;  Leeson  v. 
General  Council  (Eng.)  (1889),  43 
Ch.  D.  300,  C.  A. 

•■'»  People  ex.  rcl.  Kieley  v.  Lent 
(1915),  100  A.  D.  (N.  Y.)  550; 
1.52  N.  Y.  Supp.  18. 

''^Klinqer  v.  Ryan  (1915),  91 
Misc.  (N.  V.)  71;  153  N.  Y. 
Supp.  71;  153  N.  Y.  Supp.  937. 
Re-affirming  the  doctrine  of 
People  ex  rel.  Kieley  v.  Lent,  that 
since  a  municipality  could  not 
enforce   a   Sunday   closing   ordi- 



Where  the  theatre  license  is  issued  by  one  bureau  and 
the  liquor  license  by  another,  the  theatrical  licensing 
bureau  is  not  thereby  necessarily  deprived  of  its  control 
over  the  sale  of  licjuor  in  the  theatre.  The  licjuor  licensing 
bureau  may  be  reciuired  to  first  secure  the  consent  of  the 
other  bureau  before  issuing  its  license  to  the  theatre."" 

naiu-o  !)>'  finos  or  imprisonment 
unless  exprc-ssh/  nulhorized  by  the 
I>egislature,  it  could  not  accom- 
plish the  same  purpose  by  the 
conditions  of  a  license. 

But  see:  A7/w  v.  No.  American 
Theatres  (Eng.)  (1915),  2  K.  B. 
61;  112  L.T.  101 S;  \V.  N.  61;  79 
J.  P.  297:  i;}  L.  ("..  H.  735;  84 
L.  J.  (K.  Ji.)  1077;  :U  T.  L.  U. 
201.  A  condition  contained  in  a 
license,  that  the  theatre  be 
kept  closed  on  Sunday  was  held 
valid,  and  might  lawfully  be  im- 

Also  to  same  efTect,  London  Co. 
Council  V.  Bcrmomhey  Bioscope 
Co.  (Eng.)  (1915),  27  T.  L.  R. 

In  this  connection  see:  City 
of  Mnhilc  V.  Kin- nan  (1911),  .54 
So.  (Ala.)  102:  Yorkrille  v.  Bing- 
ham (l!K)!)),(n  Misc.  (X.  V.)  mG; 
US  N.  Y.  Supp.  7.5;i. 

See  also:  Theatre  De  Liix^  v. 
GMhill  (Eng.)  (1914),  31  T.  L.  R. 
1.38;  112  L.  T.  519.  A  theatre  was  granted  ujwn  comli- 

tion  that  no  child  under  ten 
years  of  age  should  be  allowed  t<> 
attend  under  any  circumstances 
after  9  P.  M.  Held,  that  the  act 
was  ultra  vires  ujxjn  the  ground 
that  there  wa.s  no  connection 
between  the  ground  ujxjn  which 
the  condition  was  impo.setl  and 
the  .subject  matter  of  the  license. 
Dissenting  opinion  by  Atkin,  J., 
that  county  c<juncils  were  prop- 
erly entitled  to  take  into  account 
the  public  interest  so  far  a.s  chil- 
dren were  alTcctetl. 

'"  Qtu'cn  V.  Commi.'<sioner!<  of 
Inland  Rev.  (Eng.),  .57  L.  J.  M.  C. 
92.  The  question  was  as  to 
whether  the  Empire  Theatre 
could  obtain  an  excise  license 
from  the  commissioners  of  In- 
land Revenue.  Held  that  since 
it  wjis<l  as  a  music-hall, 
application  W(Mild  have  to  l)e 
made  in  the  regular  way  to  a 
ju.stice  as  required  by  5  «fc  »> 
Wm.  IV,  c.  39,  s.  7  and  that  the 
Licensing  Act  of  1S72  did  not 


THE   PUBLIC    (continued) 


Sec.  110.  Buildings — Distances. 

111.  Standees— Aisles — Closing. 

112.  Operator  and  booth. 

113.  Firemen — Fire-escapes — Exits. 

114.  Admission  of  cliildren. 

115.  Regulation  amounting  to  prohibition. 

116.  Prohibition — Immorality. 

117.  ^^^lo  is  liable  for  penalty. 

118.  Ticket  "Scalping." 

119.  Censorship. 

120.  Sunday  performance. 

Section  110. — Buildings — Distances. 

It  is  a  valid  exercise  of  the  police  power  to  regulate  the 
construction  of  the  theatre  building/  the  nature  and  kind 
of  materials  to  be  used  in  certain  parts  therein  and  the 
like.2    The  authorities  may  also  demand  that  changes  be 

^  McCke    V.    Kctmcdy    (lOOS),  auditoriums  on  the  level  with  the 
114  S.  W.  (Ky.)  298;  People  v.  street  was  held  constitutional. 
Bime    (1910),    248    111.    11;    93  M.  G.  v.  Shoreditch  Corpora- 
ls. E.  327.  tlo7i   (Eng.)    (1915),  2   Ch.    154; 

Jewel  Theatre  Co.  v.  Wimhip  79  J.  P.  309;  W.  N.  1S4;  31  T.  L. 

(1914),  144  N.W.  (Mich.)  8.35.    A  H.  400;  S4   L.  J.   (Ch.)  772;  59 

statute  requiring  that  all  motion  Sol.  .lo.  439;    112   L.  T.   (>2S;   13 

piftiirc  theatres  shall  have  their  L.  (i.   It.    11  II.     The  authorities 




made  in  tho  builclinp;  to  reduce  fire  hazards  and  other 
risks.''  Wiiere,  liowever,  the  relator  had  ('(luipi)ed  and 
used  a  building  as  a  motion  picture  theatre,  the  mayor 
of  the  City  of  New  York  was  held  to  be  not  authorized  to 
withhold  a  license  from  him  under  the  provisions  of  an 
ordinance  which  was  passed  subseciuent  to  such  equip- 

It  was  held  in  England  that  a  tent  was  not  a  "place" 
poriiiittcd  the  ownors  of  a  public      tlie   first   instance,   and   (luite   a 
KwiininiiiK  l)atli  to  liirn  it  into  a 
motion   i)icture   tiicatic 

'/e.  V.  Hainiaij  (Kng.)  (1891), 
2  q.  n.  709. 

*Inre  Walker  (1914),  ^  Misc. 
(N.  Y.)  118;  146  N.  Y.  Supp. 
519.  Where  the  relator  liad 
ecjuipjx'd  and  used  a  ])uilihn}; 
a.s  a  motion  picture  theatre  prior 
to  December  1st,  1912,  the  Mayor 
of  the  city  \v:vs  not  autliorized 
to  witliliold  a  Hcense  from  him 
under  the  ])rovisions  of  an  or- 
(Hnance  which  was  passed  in 
March,  1913. 

"If  the  mayor  may  withliold 
a  license  then  it  is  witliin  his 
power  to  destroy  vahial)le  j)roi>- 
erty  rights  of  owners  who,  acting 
under  com|)etent  authority  have 
invested  large  sums  in  the  con- 
struction of  moving  picture  .shows, 
by  simply  refusing  to  renew  such 
licenses  when  such  licenses  ex- 
pire. It  is  one  thing  to  refuse  a 
lic(>nse  to  i)uild  and  construct  in 

dilTerent  thing  to  refuse  to  {xjrmit 
the  continued  use  of  such  a 
theatre  when  once  lawfully  con- 
Ktructe<l  under  a  lawful  jx'r- 

See  however:  Greenoiigh  v. 
Allen  Thatlrc  etc.  (1911),  SO 
Atl.  (H.  I.)  2(>().  Defendants  had 
.secured  a  jxTinit  to  alter  a  .stable 
into  a  theatre  in  accordance 
with  plans  theretofore  filed  by 
them.  The  plans  filed  by  defend- 
ants conformed  to  the  laws  then 
in  force.  Subse<iuently  a  statute 
was  enacted  requiring  that  all 
theatres  thereafter  "erected" 
shall  be  built  in  accordance  with 
such  statute.  Held  that  the 
statute  being  one  for  the  health 
and  safety  of  the  i)ublic  it  shouKl 
be  frwly  const  ruinl  aiul  that 
the  word  "erected"  was  intended 
to  include  alterations  made  to 
buildings,  erecte<l  prior  to  the 
jiassage  of  tlie  statute,  to  trans- 
form them  into  theatres. 



within  the  meaning  of  the  Act  of  1843,^  but  in  this  country 
a  tent  was  classified  as  a  "building"  on  the  question  of 
fire  limits.^ 

In  some  jurisdictions  it  has  been  held  that  the  munic- 
ipahty  has  not  the  power  to  construct  a  building  for  the 
giving  of  theatrical  performances,  such  being  purely 
private  enterprises,  while  in  other  jurisdictions  the  con- 
trary rule  has  been  apphedJ 

The  right  to  withhold  licenses  from  theatres  unless  they 
are  situated  beyond  a  certain  radius  of  a  school  or  church 
is  a  valid  exercise  of  the  police  power.^ 

^  Davys  v.  Douglas  (Eng.),  4 
H.  and  N.  180.  Section  two  of 
the  Theatres  Act  of  1843: 

"It  shall  not  be  lawful  for  any 
person  to  have  or  ke(;p  any  house 
or  other  place  of  public  resort  in 
Great  Britain,  for  the  public 
performance  of  stage-plays,  with- 
out authority  by  virtue  of  Letters 
Patent  from  I  lor  Majesty,  her 
heirs  and  successors  or  predeces- 
sors, or  without  license  from  the 
Lord  Chamberlain  of  Iler  Maj- 
esty's hous('lif)l(l  for  the  time 
being,  or  from  the  justices  of 
the  peace  as  hereinafter  provided; 
and  that  every  person  who  shall 
offend  against  this  ena(!tment 
shall  be  liable  to  forfeit  such 
sum  as  shall  be  awarded  by  the 
Court  in  which,  or  the  justices 
by  whom  he  shall  l)i'  convicted, 
not    exceeding    twenty     pounds 

for  every  day  on  which  such 
house  or  place  shall  have  been 
so  kept  open  by  him  for  the  pur- 
pose aforesaid  without  legal  au- 

"  Cify  of  St.  Louis  v.  Nash 
(1916),  18  S.  W.  (Mo.)  1145. 
Defendant  built  a  tent-like  struc- 
ture within  the  fire-limits  of  St. 
Louis  in  wliicli  he  gave  motion 
picture  exhibitions. 

Held  that  the  structure  was  not 
a  "tent"  but  was  a  "building" 
within  the  classification  of  an 
ordinance  which  prohibited  the 
erection  of  a  so-called  fourth- 
class  building  witliin  the  fire- 

'  See  Section  7i),  p.  24S,  for  a 
detailed  discussion  of  this  subject 
and  for  all  the  cases. 

"  People  ex  ni.  Moses  v.  Gaijuor 
(1!)12),   77    Misc.    (N.    Y.)    570; 



Section  1 11. — Standees — Aisles — Closing. 

As  a  precauticjiiary  nieasiu'e  agaiii>t  panics,  statutes 
and  ordinances  have  been  passed  i)njhil)iting  patrons 
from  standing  in  the  aisles  of  a  theatre'    ^^^lil('  in  an  early 

137  N.  Y.  Supp.  196.  Where  the 
power  to  grant  licenses  for  mo- 
tion-picture shows  is  vested  solely 
in  the  Mayor,  it  is  not  an  abuse 
of  his  discretion  to  refuse  a  license 
to  an  applicant  for  a  site  next 
to  a  public  school  and  opposite 
a  church,  where  it  is  shown  that 
parents  have  rcinonst rated,  and 
clergy  protested  against  the  Is- 
suance of  the  license. 

Nahser  v.  City  of  Chicago  (1916) , 
271  111.  288;  111  N.  E.  119.  It 
was  held  that  under  its  police 
power  a  municipal  corjwration 
could  refuse  to  grant  a  license  for 
a  moving  picture  tlieatrc  which 
wtus  situated  within  two  hundred 
feet  of  a  church. 

See  also:  Matter  of  Kohn  (Wag- 
ener,  Sis.son)  (1917),  N.  Y.  Law 
Journal,  Mi\y'2\);(l()o<frich  v.  Bussc 
(1910),  247  in.  :J67;  93  X.  K.  292; 
Ex  parte  Quong  Wo  (1911),  161 
Cal.  220;  118  Pac.  214;  Storer  v. 
Dowmy  (1913),  215  Mass.  273; 
102  N.  E.  321 ;  .S7.  Loiti.s  v.  Fischer 
(1902),  167  Mo.  6.')4;  67  S.  W. 
1100;  Green  v.  Saraimh  (1849),  6 
CJa.  1 ;  People  ex  rel  iMnge  v.  /*«/- 
miner  (1911),  71   MLsc.   (N.  Y.) 

158;  128  X.  Y.  Supp.  426;  affd 
144  A.  D.  (X.  Y.),  .S94;  128  X.  Y. 
Supp.  1140;  aff'd  202  X.  Y.  608; 
96  X.  E.  1126;  Citij  of  DuhUh  v. 
Marsh  (189S),  71  Miim.  248; 
73  N.  W.  962;  City  of  Chicago  v. 
Stralton  (1896),  162  111.  495; 
44  X.  E.  853;  People  ex  rel.  Keller 
v.  Oak  Park  (1915),  266  111.  365; 
107  X'.  E.  636;  Den-smore  v. 
Evergreen  (1910),  01  230; 
112  Pac.  255;  City  of  Chicago  v. 
liiphy  (1911),  249  111.  46.S;  94  X. 
I'].  931 ;  City  of  Chicago  v.  Shaynin 
(1913),  258  111.  69;  101  X.  E.  224; 
Drey f lis  v.  Montgomery  (1912), 
4  Ala.  App.  270;  58  S(j.  730. 

KSturgis  v.  Ilayman  (1903), 
84  X.  Y.  Supp.  126.  Ilel'l  a 
vi(jlation  of  the  statute  to  permit 
jHTsons  to  stand  in  the  side  au<lcs, 
where  such  aisles  were  used  to 
reach  the  side  e.\it. 

Rex  V.  Hazza  (Can.)  (1916), 
28  D.  L.  K.  373;  25  Can.  Cr.  Ca^i. 
306;  34  W.  L.  U.  97.  Spectators 
at  a  motion-i)i('ture  tlieatre  may 
stand  in  the  space  between  the 
box-office  and  the  entrance  of  the 
theatre,  known  as  the  lobby, 
while  waiting  for  admission;  and 



decision  the  space  in  the  rear  of  the  orchestra  chairs 
was  held  to  be  not  an  "aisle,"  ^^  a  later  decision  in  the 
same  state  held  that  such  space  was  an  *' aisle."  ^' 

The  fact  that  in  the  aisles  in  which  patrons  were  per- 
mitted to  stand,  seats  might  have  been  lawfully  in- 
stalled, did  not  reheve  the  proprietor  from  hability;  ^^ 
and  this  was  true  where  stools  and  chairs  had  been 
placed  in  the  aisles,  although  fixed  seats  might  have  been 
installed.  ^^ 

this  will  not  be  a  violation  of  an 
ordinance  which  prohibits  the 
standing  of  patrons  in  the  aisles 
or  exits. 

^''Sturgis  v.  Grau  (1902),  39 
Misc.  (N.  Y.)  330;  79  N.  Y.  Supp. 
843.  The  space  in  the  rear  of  the 
orchestra  of  the  Metropolitan 
Opera  House  was  occupied  by  a 
large  number  of  standees.  Held 
no  violation  of  the  statute,  as 
this  space  was  not  an  aisle  or 
passageway,  and  was  not  used 
by  the  audience  for  ingress  or 

>'  Waldo  V.  Seelig  (1911),  70 
Misc.  (N.  Y.)  254;  12G  N.  Y. 
Supp.  79S;  aff'd  146  A.  D.  (N. 
Y.)  879;  130  X.  Y.  Supp.  1133. 
Action  was  brought  by  the  Fire 
C.'onnnissiouer  to  recover  a  pen- 
alty from  the  proprietor  of  u 
theatre  for  ol)structitig  tlie  aisles 
in  his  theatre.  Held  that  the 
Hpace  directly  back  of  the  seats 

of  the  main  floor  was  an 

''- Potter  V.  Watt  (Eng.)  (1914), 
84  L.  J.  (K.  B.)  394;  79  J.  P. 
212;  112  L.  T.  508;  31  T.  L.  H. 
84.  The  respondent  was  found 
guilty  of  permitting  people  to 
stand  in  the  aisles  of  his  theatre, 
in  violation  of  the  Cinemato- 
graph Act  of  1909. 

The  fact  that  he  had  not  in- 
stalled the  full  number  of  .seats 
in  the  theatre  was  no  justifica- 

'^Sturgis  v.  Coleman  (1902), 
38  Misc.  (N.  Y.)  .303;  77  N.  Y. 
Supp.  886.  Wliile  the  side- 
aisles  of  a  theatre  were  much 
wider  than  the  minimum  pre- 
scribed by  law,  it  was  held, 
n(',  to  l)e  a  violation 
l(»  place  stools  and  chairs  therein, 
even  though  i)ermanent  seats 
might    have   been    built   u]). 



A  tlioatrc  exit  may  open  upon  an  alley." 
Regulations  as  to  closing  are  reasonable  and  valid. '^ 

Section  112. — Operator  and  booth. 

It  is  a  reasonable  exercise  oi  the  pohce  power  to  recjuire 
all  i)ersons  operating  motion  picture  machines  to  submit 
to  examinations  before  obtaining  a  license.'® 

"The  danger  to  life  and  property  incident  to  the  use  of 
moving  picture  machines  when  operated  by  incompetent 
persons  is  known  to  all.  The  films  used  in  connection  with 
the  machine  are  highly  explosive  and  dangerous  in  their 
character,  and  if  not  properly  managed  and  cared  for  are 
Hable  to  explode."  ^^ 

"  (^'ity  "f  ImUannpulis  v.  Miller 
(1!)07),  ION  Iiul.  285;  80  N.  K. 
620.  Action  fur  violation  in 
niaiiitainin}:;  an  alloy  entrance 
to  the  theatre.  Held  that  the 
ordinance  was  invalid  in  that  it 
deprived  the  defendant  of  the 
use  of  a  public  highway. 

"  People  ex  rel.  Kicley  v.  Lent 
(1915),  166  A.  D.  (X.  Y.)  550; 
152  N.  Y.  Supp.  18;  aflf'd  215 
N.  Y.  626;  109  X.  E.  1088. 

Gallagher  \'.  Riuld  (IOur.)  (1898), 
1  Q.  B.  114.  The  time  for  ch.siiig 
under  the  Licensing  Act  of  1S74 
held  to  apply  ctjually  to  theatres 
and    to    nuisic-halls. 

.4.S  to  whether  an  ordinance  re- 
quiring all  female  patrons  attend- 
ing theatrci,  motion  picture  ex- 
hibitions or  other  amusemetUs  to 

remove  their  lulls  wan  valid  see: 
Oldhcow  V.  Citu  of  Atlanta  (1911), 
71  S.  E.  (tlu.)  1015. 

'« Slate  ex  rel.  Ebert  v.  Loden 
(1912),  117  iMd.  373;  83  Atl.  564. 
A  statute  which  required  all 
persoas  to  submit  to  examination 
before  obtaining  a  as 
motion-picture  ojx^rator  was  held 

''  State  ex  rel.  Ebert  v.  Loden 
(1912),  117  Md.  373;  8.3  .\tl. 

Victoria  Pier  Syndicate  v. 
liecie  (Eng.)  (1912),  28  T.  L.  R. 
443.  The  word  "inflammable" 
as  used  in  the  Cinomctographic 
Act  of  1909  is  not  hmitcd  to 
films  which  are  "inflanunable" 
only  while  being  useil  in  the  pro- 
ecting  machine. 


The  booth  m  which  the  machine  is  inclosed  may  also 
be  required  to  be  fireproof ed.^^ 

It  has  been  held  that  an  officer  entering  the  theatre 
premises  for  the  purpose  of  making  an  inspection  to  see 
whether  inflammatory  films  were  being  used,  may  make 
other  observations  as  well,  and  will  not  be  considered  a 
trespasser.  ^^ 

Section  113. — Firemen — Fire-escapes — ^Exits. 

The  hcensing  powers  have  the  undoubted  right  to  have 
firemen  inspect  the  theatres  and  remain  throughout  the 
performances.-"  But  they  may  not  compel  the  proprietor 
of  the  theatre  to  pay  for  such  fireman,  for  that  would  be 
manifestly  unfair.  As  one  judge  said,  they  could  appor- 
tion a  goodly  number  of  fu-cmen  and  policemen  tlii'ough- 
out  the  amusement  places  of  the  city,  and  thereby  saddle 
such  proprietors  with  the  cost  of  maintaining  almost  the 
entire  fire  and  pohce  departments.-^ 

^^  Mailer    of    Whitten    (1912),  '-^  City  of  Hartford  v.  Parsom 

152  A.  D.  (N.  Y.)  506;  137  N.  Y.  (1913),  87   Conn.   412;   87   Atl. 

Supp.  360.     It  was  liold  not  to  736.     Hehl   that   where   statute 

be    an    abuse    of    discretion    to  required  that  a  fireman  or  police 

deny  a  license  because  the  mo-  officer    should    ]:)e    stationed    in 

tion  picture  'booth  was  not  fire-  each  theatre  during  performances 

proofed.  and  was  silent  as  to  who  shall 

"Mc\'iltie    V.    Turner    (Eng.)  pay  such  person,  tlie  obligation 

(1915),  60  S.  J.  238;  113  L.  T.  to  pay  rested   upon  the  inunic- 

982;  13  L.  G.  R.  1181;  79  J.  P.  ipality  and  not  upon  the  owner 

(Journal)  400.  of  the  theatre.    Held  further  also 

2"  City  of  Hartford  v.   Parsons  that  such  statute  was  reasonable 

(191.3),   87    Conn.    412;    87    Atl.  and  proper. 

7'M);    City   of  Chicago   v.    Wehcr  ('it;/ of  ('liiauio  v.  Wclwr  {l*.)\0) , 

(1910),  246  111.  304;  92  N.  E.  859.  210  111.  304;  92  N.  E.  859.    Held 



Safeguards  against  fire  and  attendant  loss  of  life  arc  of 
prime  importance  \vliere  theatres  are  concerned,  and  the 
regulating  powers  may  require  any  j^rccaution  deemed 
necessar}'  in  that  resjiect.  For  that  reason,  statutes  and 
ordinances  regulating  {ire  inspection  have  been  upheld  as 
constitutional  and  reasonable,--  as  well  as  acts  requiring 
exits,  fire-escapes,  fire-extinguishers  and  the  like.-''  In 
addition,  the  penalties  for  infraction  are  severe  and  rigidly 

that  while  the  city  might  pass 
an  ordinance  compcHing  the 
theatre  to  have  a  fireman  in 
attendance,  the  proprietor  of  the 
theatre  could  not  be  compelled 
to  pay  for  the  fireman. 

To  the  same  effect  see:  Waters 
V.  Leech  (1840),  3  Ark.  110;  but 
see  contra:  Tanneyibaum  v.  Rehm 
(1907),  152  Ala.  494;  44  So.  532; 
Cily  of  New  Orleans  v.  Hop  Lee 
(1901),  104  La.  601;  29  So.  214; 
Harrison  v.  Baltimore  (1843), 
1  Gill.  (Md.)  2(>1,  wlicre  the  pro- 
prietors were  comi)clled  to  pay. 

"  Jeup  V.  State  Fire  Marshal 
(1914),  182  Mich.  231;  148  X.  W. 
340.  A  statute  regulating  the 
operation  and  construction  of 
tlieatres  and  moving  picture  ex- 
hibitions, providing  for  lire  in- 
spection and  issuance  of  licenses 
was  held  constitutional  as  it  did 
not  conflict  with  provisions  of 
the  constitution  prohibiting  pius- 

sage  of  local  or  special  acts  or  in- 
vade the  constitutional  require- 
ments for  municipal  charters  and 
local  self-government. 

"  Roumfort  Co.  v.  Delanerj 
(1911),  230  Pa.  St.  374;  79  Atl. 
653.  An  act  requiring  exits,  fire 
escapes,  fire  extinguishers  for 
buildings  used  as  theatres  and 
other  places  where  the  pubUc  as- 
sembled was  held  valid. 

R.  V.  Ilannay  (Eng.)  (1891), 
2  (J.  B.  709.  The  authorities 
may  demand  that  changes  be 
made  in  the  building  to  reduce 
lire  hazards. 

=♦  For  liability  to  penalties  for 
infraction  of  the  fire  vegxdationH 
see:  Fire  Department  v.  Hill 
(1891),  14  N.  Y.  Supp.  158;  Fire 
Department  v.  Stetson  (1887), 
14  Daly  (X.  Y.),  12.5.  ^Vllere  the 
lessees  and  managers  were  held 
liable  even  though  the  house  had 
been  leased  away  for  a  period. 



Section  114. — Admission  of  children. 

The  hcensing  power  may  regulate  how  and  when  and 
under  what  conditions  children  may  be  admitted  to  a 
theatre.  In  many  states  and  cities  statutes  and  ordinances 
have  been  passed  making  the  admission  of  a  child  without 
a  guardian  a  criminal  offense.^^  In  such  case,  however,  a 
''guardian"  has  been  construed  as  not  necessarily  being 
a  legal  guardian,  but  as  meaning  even  a  neighbor  or 

The  fact  that  the  person  admitting  the  minor  is  de- 

■^^  People  V.  Trippi  (1912), 
152  A.  D.  (N.  Y.)  717;  137  N.  Y. 
Supp.  599.  The  conviction  of 
defendant  for  admitting  minors 
under  the  age  of  sixteen  to  a 
moving  picture  show  in  viola- 
tion of  section  484  of  the  Penal 
Law  of  New  York  was  sustained. 

See  also:  People  v.  Jensen 
(1904),  99  A.  D.  (N.  Y.)  355; 
90  N.  Y.  Supp.  1062;  aff'd  181 
N.  Y.  571;  74  N.  E.  1122. 

26  People  ex  rel.  Jacques  v.  Fla- 
herty (1907),  122  A.  D.  (N.  Y.) 
878;  107  N.  Y.  Supp.  415;  aff'd 
191  N.  Y.  525;  84  N.  E.  1118. 
Under  a  statute  providing  that 
"a  person  who  .  .  .  admits  to 
or  allows  to  remain  in  any  .  .  . 
theatre  .  .  .  owned,  kept  or  man- 
aged by  him  in  whole  or  in  part," 
any  minor  under  the  ago  of  sLv- 
toon  uiiloss  accompanied  by  its 
parent  or  guardian  was  guilty  of  a 

misdemeanor.  Held  that  the  ticket 
taker  was  not  included  as  one  of 
the  persons  liable  under  the 

See  also:  People  v.  Sammck 
(1908),  127  A.  D.  (N.  Y.)  209; 
111  N.  Y.  Supp.  11,  for  a  con- 
struction of  the  above  mentioned 
statute.  The  court  held  that  the 
owner  of  a  motion  picture  theatre 
could  not  be  convicted  under  the 
statute  where  there  was  no  proof 
that  the  place  was  injurious  to 
the  health  and  morals  of  the 
minors.  The  court  also  held  that 
the  word  "guardian"  in  the  stat- 
ute did  not  necessarily  refer  to  a 
legal  guardian  but  might  refer 
to   a   neighbor   or   friend. 

To  the  same  effect  as  the  ]mn- 
cipal  case  is  People  ex  rel.  Jacques 
V.  Sheriff  (1907),  122  A.  D.  (N. 
Y.)  878;  107  N.  Y.  Supp.  415;  alT'd 
191  N.  Y.  525;  84  N.  E.  1118. 

UKCILATION    A.MOl  .\TlN(i    T(J    I'UUHIlilTKJ.N 


coivod  as  to  liis  age  is  no  defense  for  a  violation  of  the 

The  hcense  may  als(j  provide;  that  rliildrcn  under  a 
specified  a^e  shall  not  Ijo  admitted  after  a  certain  hour 
of  th(>  niirlit.'-'^ 

Section  115. — Regulation  amounting  to  prohibition. 

In  Illinois  it  has  been  dehnitely  settled  that  the  power 
to  regulate  does  not  include  the  power  to  prohibit;  if  it  is 
sought  to  i)rohibit,  a  nuisance  must  be  estabhshed.-"^  And 
this  rule  has  been  followed  in  several  of  the  other  states 
of  the  union. ^° 

^  Rex  V.  Palon  (Can.)  (1911), 
20  Out.  W.  Kcp.  533. 

**  Theatre  I)c  Luxe  v.  G  led  hi  II 
(Eiig.)  (1915),  31  T.  L.  R.  138. 

*»  Xahser  v.  City  of  Chicago 
091G),  271  111.  2.S8;  111  N.  E. 
119.  Clause  11  of  the  ordinance 
gives  the  city  the  same  jxiwer  in 
that  rcsjxict  as  the  state  ijosscsscd, 
which  is  similar  to  the  Ameiula- 
tory  Act  of  1901  of  the  Laws  of 
New  York  whore  the  Hoard  of 
Aldermen  of  New  York  City  was 
given  power  to  ordinances 
of  a  restrictive  character  ui"K»n 
places  of  amusomont  within  the 
City  of  Now  York. 

In  tills  case  it  is  held  that  it 
would  he  a  valid  exercise  of  the 
police  iH)wcr  to  enact  a  law  pro- 
hibiting a  motion  picture  sliow 
within    200    feet    of    a    church, 

since  such  a  sIkjw  in  such  proxim- 
ity would  constitute  a  nui.><uice. 
See  also:  People  v.  Bmse  (190<>), 
240  111.  33S;  88  X.  E.  831;  (1910), 
248  111.  11;  93  N.  E.  327. 

'«A'n'er  v.  Mayor  etc.  (1914), 
21)  Col.  App.  150;  141  Pac.  505. 
//(/'/  that  a  local  ordinance  regu- 
lating the  running  of  motion- 
jiicturc  theatres  wjis  void  .us  it 
nhsoliitely  prohibited  the  same  in 
the  discretion  of  the  local  authori- 

See  also:  Matter  of  O'Rourkc 
(1894),  9  (N.  Y.)  564; 
30  X.  Y.  Supp.  375. 

But  sec  in  this  connection: 
Iliygim  v.  Lacroix  (1912),  119 
Minn.  145;  137  X.  W.  417.  "To 
say  the  Iciust,  opinions  are  quite 
at  variance  a.s  to  the  merits  of 
moving  picture  shows  as  an  in- 



This  rule,  however,  does  not  deprive  the  Ucensing  power 
from  prohibiting  motion  picture  exhibitions  or  other  forms 
of  amusement  in  certain  parts  of  a  town  or  city.^^ 

Section  1 1 6. — Prohibition — Immorality. 

It  is  within  the  pohce  power  of  the  state  to  prohibit 
the  exhibition  of  any  picture  that  is  hcentious,  obscene, 
corrupt,  seditious  or  apt  to  cause  riots  and  disturbances, 
and  this  power  may  be  delegated  to  the  municipaUty.^^ 

fluence  for  good  or  evil  in  a  com- 
munity. It  must  therefore  be 
classed  among  those  pursuits 
which  are  liable  to  degenerate 
and  menace  the  good  order  and 
morals  of  the  people,  and  may 
therefore  not  only  be  licensed  and 
regulated,  but  also  prevented  by 
a  village  council." 

"  Dreyfus  v.  City  of  Mont- 
gomery (1912),  58  So.  (Ala.)  730. 
Ordinance  prohil)iting  motion  pic- 
ture shows  in  certain  parts  of  a 
city  was  held  valid. 

See  also:  Section  110,  p.  364,  for 
in.stances  where  licenses  were 
refused  because  of  proximity  to  a 
church  or  school. 

"  Sociological  Research  v.  Waldo 
(1914),  83  Misc.  (N.  Y.)  605;  145 
N.  Y.  Supp.  492.  The  police 
inU'rfrrcd  with  the  exhibition  of 
pluintifT's  film,  "Tlie  Inside  of  the 
Wliitc  Slave  Traflic,"  descril)ing 
the  working  of  prostitutes.    Tliis 

action  was  brought  in  equity  to 
enjoin  the  police  from  interfering 
with  the  exhibition  of  the  pic- 
ture. Held  that  a  court  of  equity 
would  not  interfere  with  the 
police  in  enforcing  the  criminal 
law.  Held  further  that  the  ex- 
hibition of  a  picture  of  the  kind 
in  question  was  not  entitled  to 
protection  by  a  court  of  equity. 

City  of  Chicago  v.  Shaynin 
(1913),  258  111.  69;  101  N.  E.  224. 
A  municipal  corporation  may  pro- 
hil)it  the  giving  of  exhibitions 
which  tend  to  corrupt  public 
morals  or  piindcr  to  morbid  tastes 
and  arouse  the  sexual  desires. 

Block  v.  City  of  Chicago  (1909), 
239I11.251;87N.  E.  1011.  Holds 
that  the  city  of  Chicago  may 
regulate  motion  picture  theatres 
so  as  to  prohibit  tlie  exhil)iti()n 
of  immoral  or  obscene  pictures. 

Brewer  v.  Wy?we  (1913),  163 
N.  C.  319;  79  S.  E.  629.    Action 



It  is  no  dofonso  to  alloRo  that  the  picture  teaches  a  moral 
lesson,''''  nor  need  tliere  be  a